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Center for Language and Speech Processing @ JHU 68

[ { "docid": "22656165", "title": "", "text": "are jeopardized by the encroachments of a bad system. Such seems to have been the course of experience in those legal systems where the privilege was not recognized.” 8 Wigmore, Evidence (3d ed. 1940), 309. (Emphasis in original.) This Court also has recognized that “history amply shows that confessions have often been extorted to save law enforcement officials the trouble and effort of obtaining valid and independent evidence . . . .” Haynes v. Washington, 373 U. S. 503, 519. We have also learned the companion lesson of history that no system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens' abdication through unawareness of their constitutional rights. No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system. We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the sus pect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied “the Assistance of Counsel” in violation of the Sixth Amendment to the Constitution as “made obligatory upon the States by the Fourteenth Amendment,” Gideon v. Wainwright, 372 U. S., at 342, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial. Crooker v. California, 357 U. S. 433, does not compel a contrary result. In that case the Court merely rejected the absolute rule sought by petitioner, that “every state denial of a request to contact counsel [is] an infringement of the" } ]

[ { "docid": "1385035", "title": "", "text": "his right to remain silent and his right to counsel and that he did not competently and intelligently waive those rights. The Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 490-491, 84 S.Ct. 1758, 1765 (1963), set up guidelines for when the accused should be warned of his constitutional rights and allowed an attorney. The court stated: “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment.’ Gideon v. Wainwright, 372 U.S. [335], at 342 [83 S.Ct. 792, at 795, 9 L.Ed.2d 799], and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” The Supreme Court further noted 378 U.S. at page 492, 84 S.Ct. at page 1766: “ * * * We hold only that when the process shifts from investigatory to accusatory — when line its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.” The accusatory stage in the instant case had not attached until the time the statement was to be taken on March 11, 1965. In Escobedo, there was no doubt that a murder had been committed, and the investigation had focused on Escobedo. In the instant case no charge had been lodged against the appellant and no one was sure a crime had been committed. Captain Brave Bull stated that he didn’t suspect the appellant until" }, { "docid": "15485716", "title": "", "text": "confession was obtained during a period of detention in violation of his constitutional rights and that nothing occurred to dissipate or purge the taint of his illegal arrest, I would hold that the confession may not be used as evidence against him. Had he been effectively afforded the assistance of counsel before making his inculpatory statement, a different result might well be reached. This is so not only on the theory that the intervention of counsel between the arrest and the statement would have “purged the taint” of the arrest, but also because I view the decision in Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 as a proper alternate ground for granting the relief Collins is seeking here. It is argued here that Escobedo was intended to be limited to its own facts. Those facts were summarized by the Supreme Court as follows: “We hold * * * that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ * * * and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” 378 U.S. at 490-491, 84 S.Ct. at 1765. Even if the holding is limited, as the state contends, all the enumerated factors are present in the case at bar, except that there is no showing that Collins ever requested the assistance of counsel. But this omission must be viewed as inconsequential. It has been suggested that the court in Escobedo treated the request for counsel" }, { "docid": "23662553", "title": "", "text": "during a period of police interrogation after he was arrested and after his request to see his attorney had been denied. In reversing his conviction, the Court said: “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, .the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S. [335], at 342, [83 S.Ct. 792, at 795, 9 L.Ed.2d 799], and that no statement elicited by the police during the interrogation- may be used against him at a criminal trial.” (378 U.S. at 490, 84 S.Ct. at 1765). In taking the phrase “focus on a particular suspect” out of context, appellant would extend the rule of Escobedo beyond any logical implication of the effect of that decision. The Supreme Court in Escobedo referred to an unsolved crime. The existence of the crime was apparent. The police were seeking to identify the offender. The accused had been taken into custody. In the instant case the essential question to be determined by the investigations of the revenue agents was whether in fact any crime had been committed. The accused had not been indicted or arrested. A comparable situation was considered by this court in Irwin v. United States, 1964, 338 F.2d 770, 777, where the defendant, convicted of mail fraud, claimed his right to counsel had been violated when a postal inspector submitted an inquiry to the defendant’s company and received from the company material connected with the fraudulent scheme. In holding that the evidence of the postal inspector was properly admitted, we said: “At that time neither [of" }, { "docid": "1385034", "title": "", "text": "52-55, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); Spano v. People of State of New York, 360 U.S. 315, 321-323, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); Mitchell v. Stephens, 353 F.2d 129, 140 (8th Cir. 1965). Both the judge and the jury were presented with the issue of voluntariness and it is apparent that neither found any coercion exercised on appellant. Taking the view of the evidence which most strongly supports the findings in the trial court, as we must, the evidence definitely does not establish conclusively and as a matter of law that the confession was involuntary. Birnbaum v. United States, 356 F.2d 856, 865 (8th Cir. 1966); Mitchell v. Stephens, supra; Thompson v. Cox, 352 F.2d 488 (10th Cir. 1965). The finding as to voluntariness is fully supported by the evidence and will not be disturbed. Thomas v. Commonwealth of Virginia, 357 F.2d 87, 90 (4th Cir. 1966); Redmon v. United States, 355 F.2d 407, 411 (9th Cir. 1966). CONSTITUTIONAL RIGHTS Appellant’s next contention is that he was not timely warned of his right to remain silent and his right to counsel and that he did not competently and intelligently waive those rights. The Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 490-491, 84 S.Ct. 1758, 1765 (1963), set up guidelines for when the accused should be warned of his constitutional rights and allowed an attorney. The court stated: “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment.’ Gideon v. Wainwright, 372 U.S. [335]," }, { "docid": "6649571", "title": "", "text": "is that they were effectively denied the right to counsel when such denial substantially prejudiced their constitutional rights, As the Supreme Court noted last term in Escobedo v. Illinois, 378 U. S. [478] 487, 490, 491 [84 S.Ct. 1758, 12 L.Ed.2d 977]: “ ‘No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, * * * (his) rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system. “ ‘We hold, therefore, that where * * * the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘‘the Assistance of Counsel” in violation of the Sixth Amendment to the constitution as “made obligatory upon the States by the Fourteenth Amendment,” Gideon v. Wainwright, 372 U.S. [335], at 342 [83 S.Ct. 792, 9 L.Ed.2d 799], and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.’ “See also Massiah v. United States, 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246]. “The Court is mindful of the holding in United States v. Bellamy, 326 F.2d 389, 391 (4th Cir. 1964), but feels it is necessary to hold a hearing to ascertain if a similar state of facts exists. “Each petitioner is in the South Carolina State Penitentiary, awaiting the infliction of the death sentence by electrocution. [In accordance with § 55-373, S. C. Code, 1962.] At this time this Court cannot pass on the merits of the petitions for relief; suffice it to say that the allegations in the petition do not" }, { "docid": "10643998", "title": "", "text": "sixth allegations of his petition, Durham complains that certain of his incriminating statements should not have been admitted into evidence at his trial. For purposes of reference, the statements complained of are listed by the court as follows: 1. A signed confession taken at the Virginia State Penitentiary by State Police Investigators Lloyd and Craft on June 23, 1964; 2. Petitioner’s oral statements made en route to and at the scene of the murders on July 14, 1964; 3. A signed confession taken at the office of the Frederick County Commonwealth’s Attorney on July 14, 1964; 4. A signed confession taken at the Winchester City Jail on March 15, 1965. Of these, the first, second and third statements are claimed to have been elicited while Durham was being denied the right of assistance of counsel. Additionally, all four statements are attacked as being involuntary. For reasons which follow, the court finds that neither of these claims entitle Durham to relief. His claims will be discussed initially as they apply to his first and second statements referred to above. The court finds no substance to Durham’s claim that he was denied the right to counsel. He necessarily rests this assertion on the authority of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). In Escobedo, police had elicited an incriminating statement from a suspect who had not been advised of his right to remain silent, whose requests to see his attorney were repeatedly denied, and whose attorney was denied access to his client. The Supreme Court held that: « * * where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’" }, { "docid": "23156364", "title": "", "text": "Escobedo, the Court concluded, p. 1765: “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S. [335], at 342, 83 S.Ct. [792], at 795 [9 L.Ed.2d 799] and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” The Court strongly emphasized its above finding in the final paragraph of its opinion, saying: “Nothing we have said today affects the powers of the police to investigate ‘an unsolved crime,’ Spano v. New York, 360 U.S. 315, 327, 79 S.Ct. 1202, 1209 [3 L.Ed.2d 1265] (Stewart, J., concurring), by gathering information from witnesses and by other ‘proper investigative efforts.’ Haynes v. Washington, 373 U.S. 503, 519, 83 S.Ct. 1336, 1346 [10 L.Ed.2d 513]. We hold only that when the process shifts from investigatory to accusatory — when its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.” The ruling of the Supreme Court is very clear and as of course is to be, and will be, followed explicitly where applicable. The facts of the appeal before us are well without the range of the Esco-bedo decision. The subject matter here involved was some stolen clothing. Ko-nigsberg was one of five people found with the merchandise. At the time of trial he was thirty-five years old. He had been convicted of robbery in" }, { "docid": "10643999", "title": "", "text": "referred to above. The court finds no substance to Durham’s claim that he was denied the right to counsel. He necessarily rests this assertion on the authority of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). In Escobedo, police had elicited an incriminating statement from a suspect who had not been advised of his right to remain silent, whose requests to see his attorney were repeatedly denied, and whose attorney was denied access to his client. The Supreme Court held that: « * * where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment * * 378 U.S. 490-491, 84 S.Ct. 1765. The circumstances surrounding Durham’s statement of June 23, 1964 bear no resemblance to the interrogation procedures proscribed in Escobedo. Officers Craft and Lloyd testified at Durham’s trial that, prior to questioning Durham, Lloyd advised him of his right to counsel and that he did not have to make any statement. The statement itself, which was read to and signed by Durham, states that he knew that he was entitled to counsel and that anything he said could be used against him in a court of law. Durham admitted at trial that he was so advised. Petitioner points to the fact that, prior to June 23, 1964, an attorney, Russell Roberts, had been appointed to represent him on the unrelated murder charge in Stafford County. He contends that the questioning of June 23rd, in Roberts’ absence, was improper under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Massiah, however, is inapposite. The Supreme Court there condemned" }, { "docid": "22442516", "title": "", "text": "obtained. There is necessarily a direct relationship between the importance of a stage to the police in their quest for a confession and the criticalness of that stage to the accused in his need for legal advice. Our Constitution, unlike some others, strikes the balance in favor of .the right of the accused to be advised by his lawyer of his privilege against self-incrimination. See Note, 73 Yale L.J. 1000, 1048-1051 (1964). “We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” (Id. at 488-489, 84 S.Ct. at 1764.) And it summarizes its holding as follows: “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S. [335], at 342 83 S.Ct. [792,] at 795 [9 L.Ed.2d 799] and that no statement elicited, by the police during the interrogation may be used against him at a criminal trial.” (Id. at 490-491, 84 S.Ct. at 1765.) Again, there is emphasis upon “eliciting incriminating statements.” We note, too, that the Court distinguished Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, because “In that case the Court merely rejected the absolute rule sought by petitioner, that ‘every state denial of a request to contact counsel [is] an infringement of the constitutional right without regard" }, { "docid": "15485717", "title": "", "text": "to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ * * * and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” 378 U.S. at 490-491, 84 S.Ct. at 1765. Even if the holding is limited, as the state contends, all the enumerated factors are present in the case at bar, except that there is no showing that Collins ever requested the assistance of counsel. But this omission must be viewed as inconsequential. It has been suggested that the court in Escobedo treated the request for counsel merely as evidence that the investigation had begun to focus on the defendant. People v. Dorado, Cal., 1964, 40 Cal.Rptr. 264, 394 P.2d 952, 957; People v. Dorado, Cal., 1965, 42 Cal.Rptr. 169, 176, 398 P.2d 361 (on rehearing en banc) ; Note, The Right to Counsel During Police Interrogation: The Aftermath of Escobedo, 53 Calif.L.Rev. 337, 361. This view finds support in the following passage from the opinion: “The interrogation here was conducted before petitioner was formal ly indicted. Within the context of this case, that fact should make no difference. When petitioner requested, and was denied, an opportunity to consult with his lawyer, the investigation had ceased to be a general investigation of ‘an unsolved crime.’ * * * Petitioner had become the accused, and the purpose of the interrogation was to ‘get him’ to confess his guilt despite his constitutional right not to do so.” 378 U.S. at 485, 84 S.Ct. at 1762. It would be disingenous, however, to suggest that there is no unclarity in the opinion on this point. Be" }, { "docid": "22162730", "title": "", "text": "490-91 [84 S.Ct. 1758]: ‘We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned Mm of his absolute constitutional right to remain silent, the accused has been denied “the Assistance of Counsel” * * * and * * * no statement elicited by the police during the interrogation may be used against him at a criminal trial.’ (Emphasis added) “This court is of the opinion that the Escobedo case recognizes the constitutional right of a suspect to be warned of his right to remain silent. Justice Goldberg, in delivering the opinion in Esco-bedo, specifically stated that a suspect must be warned of his ‘absolute constitutional right to remain silent’ if any statement made by him is to be used in a criminal trial. Further recognition of the importance of advising the criminal accused of their right to remain silent is provided by the Supreme Court’s discussion of Crooker v. California, 357 U.S. 433 [78 S.Ct. 1287, 2 L.Ed.2d 1448] (1958), in the Escobedo case at pages 491-492 [84 S.Ct. 1758]. “Miranda v. Arizona, supra, is not the original exposition of the duty of law enforcement authorities to warn a person being interrogated of his right to remain silent. Miranda broadens this principle as first set forth in Escobedo. In Escobedo, the Supreme Court held that after the investigation focuses on a particular suspect, any confession or admission made by the suspect must have been preceded by an effective warning informing the suspect of his right to remain silent if such confessions or admissions are to be admitted in a criminal trial. Miranda broadens this principle to the point where persons must be warned of their right to remain silent prior to any ‘custodial interrogation’ (which does not necessarily" }, { "docid": "22963112", "title": "", "text": "counsel to a person who had not been indicted or arraigned, but who had been taken into custody and interrogated by the police at the police station. Escobedo had an attorney and had conferred with him a few days prior to his interrogation at the police station. During his detention by the police Esco-bedo’s attorney was present in the building and attempted to speak to his client but was denied access to him by the police. Escobedo also requested permission to see his counsel, but the police denied that request. The Supreme Court stated: “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun, to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute conswcutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,' * * * and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” 378 U.S. at 490-491, 84 S.Ct. at 1765. The Court again stated its holding at 492, 84 S.Ct. at 1766: “We hold only that when the process shifts from investigatory to accusatory — when its focus is on the accused and its purpose is to- elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.” The concern of the Supreme Court in Escobedo was to determine the point at which the right to counsel attached. Not every police interrogation requires the presence of counsel, but when the focus of the investigation shifts from inquiries of a general nature to the investigation of the acts of a particular suspect counsel" }, { "docid": "3260595", "title": "", "text": "of Illinois, supra, show that Escobedo was arrested early the next morning after his brother-in-law was shot and interrogated until sometime late in the afternoon, when his lawyer obtained his release under a state court writ of habeas corpus. Ten days later he was again taken into custody between 8:00 p. m. and 9:00 p. m. On this occasion Escobedo repeatedly requested to talk to his lawyer and once saw him through an open door but was told by the police that his lawyer did not want to see him. During this same time petitioner’s lawyer was attempting to see him but was told by the police that he could not see petitioner until the police were through interrogating him. During this later interrogation, Escobedo confessed, and the Court in holding it inadmissible said: “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S. [335] at 342, 83 S.Ct. [792] at 795 [9 L.Ed.2d 799], and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” The respondent takes the position that Escobedo v. State of Illinois, supra, is not applicable (1) because at the time of the confession the officers were conducting a general inquiry into the crime involved, (2) because petitioner did not request counsel, and (3) because the exclusionary rule set out therein should not be applied retroactively. The facts show that at the time of petitioner’s first incriminating statement to the officers, the" }, { "docid": "15448840", "title": "", "text": "to conclude that the Supreme Court did not intend to restrict Mapp to prospective application is that it did not say so.” 5. The admission into evidence of Attorney General Nugent’s testimony at the trial, relating the statements of petitioner Nelson made at their “first interview” at a time when Nelson was denied access to counsel, deprived petitioner Nelson of due process of law. In Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), the United States Supreme Court held that where the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his right to remain silent, the accused has been denied “The Assistance of Counsel” in violation of the Sixth Amendment to the Constitution as made obligatory upon the States by the Fourteenth Amendment, and that no statement elicited during the interrogation may be used against him at a criminal trial. 378 U.S. 490-491, 84 S-Ct. 1758 (1964). The Court holds that the factual prerequisites as established in the Escobedo opinion are present in the instant case with respect to petitioned Nelson’s “first interview” with Attorney General Nu-gent. The State has argued that no “confession” is involved here, and that, therefore, the Escobedo case does not apply. However, it should be noted that the Escobedo opinion speaks of “incriminating statements,” not confessions. Attorney General Nugent’s testimony was allowed by the trial court as reporting “admissions”' and statements showing consciousness of guilt. The Court cannot say that the jury did not consider them to be such and, therefore, concludes that the testimony reported incriminating statements. However, since the trial court carefully instructed the jury that the statements were not to be considered against petitioner Martineau, the Court cannot conclude that he was denied due process of law" }, { "docid": "12363303", "title": "", "text": "to remain silent or of his right to the assistance of counsel. Appellant did not testify at the habeas corpus- hearing, and while State officers who arrested and questioned him did testify, their testimony is unclear and in conflict on the questions of whether he was in fact advised of his right to remain silent and of his right to counsel. The District Court rejected all of appellant’s contentions, but that court’s decision was rendered prior to Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. There the Supreme Court stated; “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S. [335] at 342, 83 S.Ct. [792] at 795 [9 L.Ed.2d 799] and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” 378 U.S. at 491, 84 S.Ct. at 1765. Several cases bearing on the scope of Escobedo have already Leen, argued before the Supreme Court and ncbdoubt will soon be decided. Assuming that appellant is re-indicted and retried, the conflicts in the testimony with regard to the circumstances surrounding appellant’s confession should be resolved, but we feel that they can best be resolved by the State trial court in light of Escobedo, the forthcoming Supreme Court decisions and any further evidence which might be presented on retrial. Of course, the Supreme Court has also said that “whatever independent significance” may be attached to such factors as the failure to" }, { "docid": "9541623", "title": "", "text": "petitioner of his rights in this delicate situation. Powell v. Alabama, 287 U.S. 45, 69 [53 S.Ct. 55, 64, 77 L.Ed. 158] [(1932)]. This was the “stage when legal, aid and advice were most critical to petitioner.” Massiah v. United States, supra, at 204 [84 S.Ct. at 1201-1202]. It was a stage surely as critical as was the arraignment in Hamilton v. Alabama, 368 U.S. 52 [82 S.Ct. 157, 7 L.Ed.2d 114] [ (1961) ], and the preliminary hearing in White v. Maryland, 373 U.S. 59 [83 S.Ct. 1050, 10 L.Ed.2d 193] [ (1963) (per curiam) ]. 378 U.S. at 485, 486, 84 S.Ct. at 1762. In Escobedo the defendant, while in custody, asked to consult with his attorney, and the precise holding is limited to that state of facts: We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied “the Assistance of Counsel” in violation of the Sixth Amendment .... 378 U.S. at 490-91, 84 S.Ct. at 1765. The precise holding in Escobedo does not protect Muzychka because, although Rai-ton’s interrogation clearly took place at an accusatory stage (Muzychka had already been arrested with P-2-P in his constructive possession), Muzychka was not, at the time of his conversation with Raiton, in police custody, nor had he requested and been denied an opportunity to consult with counsel. Justice Goldberg’s reasoning in Escobedo, however, that the sixth amendment right to counsel attached once the defendant was the target of an investigation, could with very little strain have been extended to a per se prohibition against governmental interrogation in the absence of counsel once an investigation evolved to the stage of an accusation which resulted in" }, { "docid": "4059880", "title": "", "text": "will send us both to jail” when his wife told the police that there was a change in Magoon’s sexual activity at the time of the fires. The Applicability of Escobedo Petitioner bases his claim of the inadmissibility of his statements on Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), rather than on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). His trial was held in September 1964, subsequent to the Supreme Court’s rendering of the former decision but prior to the latter; Miranda is not retroactive. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). The holding of Escobedo is “that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S., at 342, [83 S.Ct. at 795, 9 L.Ed.2d 799,] and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” (378 U.S. at 490-491, 84 S.Ct. at 1765) The Warning to an Accused Escobedo requires that the accused be “effectively warned” of his right to remain silent, but does not define “effective warning.” Miranda holds that “[t]he warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court.” 384 U.S. at 469, 86 S.Ct. at 1625. Miranda, of course, does not apply to the present case; and the fact that Miranda included the explanation of the consequences of the" }, { "docid": "23662552", "title": "", "text": "applying either Massiah or Esco-bedo in a case involving an income tax investigation. It is necessary accordingly to consider rather precisely what was held in both cases and their impact upon a case of this nature. In Massiah the defendant, under indictment for violation of the narcotic laws, had retained counsel and was free on bail when, out of the presence of his attorney, he made incriminating statements to a co-defendant, who, without Massiah’s knowledge, had agreed to become a witness for the Government. The statements were overheard by federal agents who had installed radio equipment in the co-defendant’s car. The court, in referring to the guarantee of the Sixth Amendment, said: “We hold that the petitioner was denied the basic protections of that guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” (377 U.S. at 206, 84 S.Ct. at 1203). In Escobedo the defendant made incriminating statements during a period of police interrogation after he was arrested and after his request to see his attorney had been denied. In reversing his conviction, the Court said: “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, .the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S. [335], at 342, [83 S.Ct. 792, at 795, 9 L.Ed.2d 799], and that no statement elicited by the police during the interrogation- may be used against him at a criminal trial.” (378 U.S." }, { "docid": "20952690", "title": "", "text": "the petition of Thomas McCode for a writ of habeas corpus is denied for failure to exhaust state remedies and tbe request of Thomas McCode for a copjr of the transcript of his habeas corpus hearings is denied. . In Escobedo v. State of Illinois, 378 U.S. 478, 490, 491, 84 S.Ct. 1758, 1765, (1964) it was held that “where * * * the [police] investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused' has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S. [335], at 342, [83 S.Ct. 792, at 795, 9 L.Ed.2d 799], and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” . C.P. 1 June Term, 1962, No. 3015 petition dismissed August 17, 1962 C.P. 5 June Term, 1963, No. 5096 petition dismissed December 17, 1963 C.P. 4, December Term, 1963, No. 3650 petition dismissed March 26, 1964 . Attached to relator’s present habeas corpus petition is an alleged copy of a letter from the Prothonotary of the Pennsylvania Supreme Court indicating that relator on July 3, 1964 attempted to appeal from the decision of the Common Pleas Court which had dismissed his habeas corpus petition on March 26, 1964 (Dec. Term 1963 — No. 3650). Since relator attempted to file his appeal slightly more than three months after the lower court’s decision, the appeal was considered untimely. See Act of May 19, 1897, P.L. 67 § 4, as amended, 12 P.S. § 1136. . There is no reason to suspect that requiring relator to seek relief in the" }, { "docid": "8453919", "title": "", "text": "to counsel could probably be terminated at this point. Nevertheless, because the petitioner is under a death sentence, we deem it appropriate to state the views of this Court as to the limiting effect of Esco-bedo v. State of Illinois, supra, and especially in the light of the factual situation herein presented. In Escobedo the defendant, after arrest, made several requests to see his retained counsel who, though present in the building to the knowledge of the police, was refused access to his client. Defendant was not advised of his right to remain silent and, after persistent questioning by the police, made an incriminatory statement to an Assistant State’s Attorney which was admitted in evidence at the trial. Defendant was convicted of murder and, on direct appeal, the Supreme Court of the United States reversed and remanded in a five to four decision. It is the broad language in Escobedo which has given rise to much confusion among attorneys and judges. For example, it is said (378 U.S. 490, 84 S.Ct. 1765): “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but [1] has begun to focus on a particular suspect, [2] the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and [5] the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S., at 342, 83 S.. Ct., at 795, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” With three exceptions, petitioner apparently comes within the foregoing holding. The exceptions are (1) petitioner did not request a lawyer at the time of or prior to giving his incriminatory statement, (2) petitioner’s counsel" } ]

[ { "docid": "17310547", "title": "", "text": "only be justified by a compelling state interest. Likewise, regulations that afford the power to veto a woman’s decision to terminate her pregnancy must be supported by a compelling state interest. See [Planned Parenthood of Central Mo. v.] Danforth, 428 U.S. [52] at 67-72, 96 S.Ct. 2831 [at 2840-2842, 49 L.Ed.2d 788]. Regulations that interfere with a woman’s privacy to a lesser degree, however, require a lesser showing by the state to withstand constitutional attack: “As Whalen [v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977)] makes clear, the right in Roe v. Wade can be understood only by considering both the woman’s interest and the nature of the State’s interference with it.” Maher [v. Roe], supra 432 U.S. [464] at 473, 97 S.Ct. [2376] at 2382 [53 L.Ed.2d 484]. Accordingly, the Court must determine the degree that each section of Ordinance Number 160-1978 interferes with a woman’s constitutional right, in consultation with her physician, to choose to terminate her pregnancy. That interference must then be weighed against any valid state interest furthered by such section. Finally, it will be necessary to consider the combined effect of all the various sections not independently unconstitutional to determine whether their combined impact results in such a degree of interference with the constitutional right at issue to result in a finding of invalidity. 479 F.Supp. at 1200. B. We believe the district court read too much into the post-Wade decisions of the Supreme Court. In Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), the Court found, at least implicitly, that a regulation requiring a pregnant woman to sign a written consent to an abortion did not “restrict the decision of the patient and her physician regarding abortion during the first stage of pregnancy.” 428 U.S. at 66, 96 S.Ct. at 2840. The Court also found, explicitly, that a record-keeping requirement of the Missouri statute imposed “no legally significant impact or consequence on the abortion decision or on the physician-patient relationship.” Id. at 81, 96 S.Ct. at 2846. The validation of these provisions" } ]

[ { "docid": "15193735", "title": "", "text": "challenges to laws regulating abortion based on the constitutional rights of their patients because they can adequately represent the patients’ interest.”); see also Planned Parenthood of Minn., Inc. v. Citizens for Community Action, 558 F.2d 861, 865 n. 3 (8th Cir.1977). The Defendant does not contest the Plaintiffs face a concrete injury if they do not receive the funding they were conditionally awarded in March 2003; and that injury will be redressed if the Defendant is enjoined from enforcing Rider 8. Therefore, Article III standing is apparent, and the Plaintiffs have a right to assert their patients’ constitutional right to be free from an undue burden when choosing whether to terminate their pregnancies. Singleton, 428 U.S. at 117, 96 S.Ct. 2868 (“Aside from the woman herself, therefore, the physician is uniquely qualified to litigate the constitutionality of the State’s interference with, or discrimination against, that decision.”). A law constitutes an undue burden if it “has the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Casey, 505 U.S. at 877, 112 S.Ct. 2791, 120 L.Ed.2d 674. The Supreme Court has held when a state refuses to fund abortion, “[a]n indigent woman who desires an abortion suffers no disadvantage as a consequence of [the state’s] decision to fund childbirth; she continues as before to be dependent on private sources for the services she desires.” Maher, 432 U.S. at 474, 97 S.Ct. 2376, 53 L.Ed.2d 484. Additionally, the Supreme Court held Title -X regulations prohibiting Title X projects from referring pregnant women to abortion providers did not impose an undue burden because “Congress’ refusal to fund abortion counseling and advocacy leaves a pregnant woman with the same choices as if the Government had chosen not to fund family-planning services at all.” Rust, 500 U.S. at 202, 111 S.Ct. 1759, 114 L.Ed.2d 233. The Supreme Court also held the Hyde Amendment to the Medicaid Act “leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have if Congress had" }, { "docid": "12609411", "title": "", "text": "in the absence of any justification for the physician counseling requirement, the plaintiffs were entitled to a preliminary injunction against the operation of the statute. But see Planned Parenthood Ass’n of Kansas City, Mo. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983). In affirming the district court’s holding that a statute requiring the attending physician to inform the pregnant woman of risks associated with the abortion procedure and alternatives to abortion, the Court held that “this minimal requirement is consistent with the principle that the abortion decision is one to be made by a woman and her physician, and advances the state's interest in insuring that the decision is made with \"full knowledge of its nature and consequences.” Planned Parenthood v. Danforth, 428 U.S. at 67, 96 S.Ct. at 2840. (Footnote and citations omitted.) . In Roe v. Wade, 410 U.S. 113, 159, 93 S.Ct. 705, 729, 35 L.Ed.2d 147 (1973), the Supreme Court stated that \"the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.\" (footnote omitted). In Poe v. Gerstein, 517 F.2d 787, 796 (5th Cir.1975), aff’d sub. nom. mem., Gerstein v. Coe, 428 U.S. 901, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976), the court concluded that \"[s]ince the fetus is not a person, [citations omitted] neither is it a ‘child.’\" . Accord, Planned Parenthood Ass’n of Kansas City, Mo. v. Ashcroft, supra, 483 F.Supp. at 698, where the court stated that “[i]t is evident that [many] physicians, in the exercise of their best medical judgment, would choose not to provide their patients seeking abortions with a detailed anatomical description of the fetus.” In Leigh v. Olson, 497 F.Supp. 1340, 1345 (D.N.D.1980), the court concluded that such information “may have an adverse medical effect on the patient.\" Cf. Akron Center for Reproductive Health, Inc. v. City of Akron, 479 F.Supp. 1172, 1203 (N.D.Ohio 1979), aff'd in relevant part, 651 F.2d 1198 (6th Cir.1981), 103 S.Ct. 2481 (1983), in which the court held that \"[t]he state cannot ... specify what each [abortion] patient must be told.” . See n. 5, supra." }, { "docid": "1541501", "title": "", "text": "could be made by virtually any litigant wishing to evade the generalized grievance limitation. Nevertheless, whether the HRC’s alleged injury is a mere generalized grievance need not be decided since the Court’s cases are less than entirely clear in this area and the discussion of the other standing requirements suffices to deny the Center's standing. . Whether the HRC possesses standing as the representative of its members under Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) is not considered here, since two HRC members here assert standing in their own right. If they have standing, there is nothing gained by finding that the HRC also has representative standing. If the members do not have standing, then neither would the HRC in its representational capacity. See id. at 343, 97 S.Ct. at 2441. . Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), is an unusual situation that proves this rule. In Singleton, the Court found that physicians had shown article III injury and causation from a statute that denied them Medicaid reimbursement for abortions they performed. The statute both aimed at preventing the physicians from performing abortions and operated immediately and automatically on the physicians by denying them reimbursement for abortions already performed at the time they sued, obviating any need to base causation on the likelihood of any third party action, such as the patients’ payment to their physicians. Compare Singleton with Diamond v. Charles, — U.S. -, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), where a pediatrician was denied standing to defend the constitutionality of an Illinois law obligating physicians performing abortions to attempt to save the lives of viable fetuses. The statute imposed no legal obligation or intended burden upon Diamond, the pediatrician. The Court, expressly distinguishing Singleton, found that Diamond’s alleged injury — loss of business resulting from contraction of the pool of potential fee-paying patients — was based on the speculative independent action of third parties, namely, the possibilities that such fetuses would survive and then find their way as patients to" }, { "docid": "22329379", "title": "", "text": "individual enforcement decisions are made. The State’s acquiescence in the Court of Appeals’ determination of unconstitutionality serves to deprive the State of the power to prosecute anyone for violating the Abortion Law. Diamond’s attempt to maintain the litigation is, then, simply an effort to compel the State to enact a code in accord with Diamond’s interests. But “the power to create and enforce a legal code, both civil and criminal” is one of the quintessential functions of a State. Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 601 (1982). Because the State alone is entitled to create a legal code, only the State has the kind of “direct stake” identified in Sierra Club v. Morton, 405 U. S., at 740, in defending the standards embodied in that code. B Even if there were circumstances in which a private party would have standing to defend the constitutionality of a challenged statute, this is not one of them. Diamond is not able to assert an injury in fact. A physician has standing to challenge an abortion law that poses for him a threat of criminal prosecution. Doe v. Bolton, 410 U. S., at 188; see Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 62 (1976). In addition, a physician who demonstrates that abortion funding regulations have a direct financial impact on his practice may assert the constitutional rights of other individ uals who are unable to assert those rights themselves. See Singleton v. Wulff, 428 U. S. 106 (1976). Diamond attempts to assert an equivalent interest based upon his personal status as a doctor, a father, and a protector of the unborn. We must reject Diamond’s claims that his personal and professional interests confer standing. Diamond, who is a pediatrician, claims that if the Abortion Law were enforced, he would gain patients; fewer abortions would be performed and those that would be performed would result in more live births, because the law requires a physician to attempt to preserve the life of the aborted fetus. By implication, therefore, the pool of" }, { "docid": "3962736", "title": "", "text": "clear intent[] to continue to perform abortions ... [a physician] has alleged a sufficiently concrete and imminent injury — possible prosecution and imprisonment — to challenge the provisions that ban abortion providers from [providing medical abortions to women prior to fetal viability.]”). Further, Dr. Hearn need not even claim a “specific intent to violate the statute.” Id. at 917 (noting that a plaintiff need only “reasonable fear a statute would be enforced against it if it engaged in certain conduct”) (citation omitted). Second, Dr. Hearn’s intent to provide FDA-approved medication to women to terminate their pregnancies prior to fetal viability does not need to be supported by a demonstration of the “medical appropriateness” of his ability to provide medical abortions. Whether Dr. Hearn can provide medical abortions in “an appropriate clinical setting” is irrelevant to whether he, as an Idaho licensed physician, can effectively represent the constitutional right to terminate a pregnancy before viability. The Supreme Court has looked to the professional relationship between a physician and a patient, Griswold, 381 U.S. at 481, 85 S.Ct. 1678, the economic harm on abortion providers, Singleton, 428 U.S. at 112-13, 96 S.Ct. 2868, and a physician’s “direct stake” in the abortion process, Diamond v. Charles, 476 U.S. 54, 67, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), when determining standing. But an inquiry into the “medical appropriateness” of an abortion provider’s practice is not only unprecedented, but is also too ambiguous, and thus unwarranted. Since 1997, Dr.' Hearn has continuously been registered with the Federal Drug Enforcement Agency and the Idaho State Board of Pharmacy. And his ability to legally prescribe FDA-approved abortion medication in Bannock County is sufficient to demonstrate an “actual and imminent” injury — the risk of criminal prosecution for prescribing abortion pills prior to viability. Accordingly, the district court properly determined that Dr. Hearn has standing to assert his patients’ rights in cases challenging abortion restrictions, and we will consider Dr. Hearn’s claims. C. The statutes pose an undue burden on a woman’s ability to obtain an abortion, and the criminal sanctions for abortion providers are unconstitutionally vague. A" }, { "docid": "1683272", "title": "", "text": "[and] in maintaining medical standards.” ... (T)his health interest does not become compelling until “approximately the end of the first trimester” of pregnancy. Until that time, a pregnant woman must be permitted, in consultation with her physician, to decide to have an abortion and to effectuate that decision “free of interference by the State.” Akron, 103 S.Ct. at 2491-92 (citations omitted) (footnote omitted). Subsequent to its decision in Roe v. Wade, the Supreme Court has several times found it necessary to evaluate state regulations that in some way affect a woman’s ability to exercise her fundamental right to terminate her pregnancy. See City of Akron v. Akron Center for Reproductive Health, supra; Planned Parenthood v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983); Simopoulos v. Virginia, 462 U.S. 506, 103 S.Ct. 2532, 76 L.Ed.2d 755 (1983); Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976); Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Connecticut v. Menillo, 423 U.S. 9, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). In Akron, one of its most recent abortion decisions, the Supreme Court rearticulated the guidelines for permissible state regulation of abortion. These guidelines control the analysis of the Michigan legislation being challenged here. Akron teaches that during the first trimester of pregnancy the State may impose only regulations that have “no significant impact on the woman’s exercise of her right [to abort],” and even these “minor regulations ... may not interfere with physician-patient consultation or with the woman’s choice between abortion and childbirth.” Akron, 103 S.Ct. at 2492-93 (emphasis added). Furthermore, these insignificant regulations must further “important state health objectives,” and the burden of demonstrating this rests on the State. Id. 103 S.Ct. at 2493. “From approximately the end of the first trimester of pregnancy, the State ‘may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.’ ” Akron, 103 S.Ct. at 2493 (quoting Roe v. Wade," }, { "docid": "8822498", "title": "", "text": "(Vernon 1978)] imposes any obligation on them or that its operation otherwise injures them in fact. They do not claim any interest in the question of who receives custody that is “sufficiently concrete” to satisfy the “case or controversy” requirement of a federal court’s Art. III jurisdiction. Singleton v. Wulff [428 U.S. 106, 112, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1975)]. Accordingly, the physician-appellants do not have standing to challenge § 7 of the Act [Mo.Rev.Stat. § 188.040 (Vernon 1978)]. Id. at 62 n.2, 96 S.Ct. at 2838. On the basis of the Supreme Court’s holding, the three-judge district court in this case held that the Singleton requirement of injury in fact was not satisfied sufficiently to establish Freiman’s standing to challenge section 188.040. Freiman v. Ashcroft, 440 F.Supp. 1193 (E.D.Mo.1977). This court has also once before commented upon standing of physicians to challenge a very similar statute. In Hodgson v. Lawson, 542 F.2d 1350 (8th Cir. 1976), this court considered the constitutionality of Minn.Stat.Ann. § 145.415(3) (Supp.1978), which reads in part: “[W]henever an abortion of a potentially viable fetus results in a live birth, the child shall be an abandoned ward of the state and the parents shall have no parental rights or obligations * * Id. In Hodgson, this court found the statute to be unconstitutional because of its use of the phrase “potentially viable,” but we additionally noted: The constitutionality of Minn.Stat. § 145.415, subd. 3 * * * is also highly questionable for reasons not advanced by the appellees here. See Doe v. Rampton, 366 F.Supp. 189, 193 (C.D.Utah 1973), where a similar statutory provision was struck down because it provided for termination of parental rights without due process of law. The physician-appellees here, as in Planned Parenthood of Central Missouri v. Danforth [428 U.S. 52, 62 n.2, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1975)], would not have standing to challenge subd. 3 because they cannot claim any injury in fact. Hodgson v. Lawson, supra, 542 F.2d at 1355 n.2 (emphasis added). The recognition that Freiman has standing to challenge section 188.045 does not alter his" }, { "docid": "4031092", "title": "", "text": "against governmental interference with\" the abortion decision_”); cf. Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (allowing physician to assert privacy rights of patients because of the confidential nature of the relationship and because the rights of the latter were “likely to be diluted or adversely affected” if they could not be asserted by the physician). Indeed, physicians and clinics performing abortions are routinely recognized as having standing to bring broad facial challenges to abortion statutes. See, e.g., City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 440 n. 30, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (Akron I), overruled on other grounds by Casey, 505 U.S. at 882, 112 S.Ct. 2791; Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 62 & n. 2, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Planned Parenthood of S. Ariz. v. Lawall, 180. F.3d 1022, amended by 193 F.3d 1042 (9th Cir.1999). We may therefore consider the constitutional arguments Weyhrich raises solely on his patients’ behalf. See Singleton, 428 U.S. at 117, 96 S.Ct. 2868; Akron I, 462 U.S. at 440 n. 30, 103 S.Ct. 2481. 2. Planned Parenthood Planned Parenthood’s standing poses different questions. Unlike Planned Parenthood affiliates in several other states who have been found to have standing to challenge abortion regulations, see, e.g., Planned Parenthood of Wis. v. Doyle, 162 F.3d 463, 465 (7th Cir.1998), the Idaho chapter does not provide abortion services directly. Instead, the Idaho chapter provides only counseling, contraceptive, and referral services. Idaho contends that Planned Parenthood therefore lacks standing. Unlike Weyhrich, Planned Parenthood’s conduct is not threatened by enforcement of the statute, and it can, under Idaho law, have no abortion “patients” whose interests it may espouse. If Planned Parenthood can enunciate no more than an “ideological” interest in seeing the statute invalidated, it lacks standing to challenge it. Id. On appeal, Planned Parenthood articulates no independent theory for its standing. It instead piggybacks on Weyhrich, defending the district court’s conclusion that because Planned Parenthood shares an attorney with Weyhrich, its presence in the suit poses" }, { "docid": "22329380", "title": "", "text": "physician has standing to challenge an abortion law that poses for him a threat of criminal prosecution. Doe v. Bolton, 410 U. S., at 188; see Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 62 (1976). In addition, a physician who demonstrates that abortion funding regulations have a direct financial impact on his practice may assert the constitutional rights of other individ uals who are unable to assert those rights themselves. See Singleton v. Wulff, 428 U. S. 106 (1976). Diamond attempts to assert an equivalent interest based upon his personal status as a doctor, a father, and a protector of the unborn. We must reject Diamond’s claims that his personal and professional interests confer standing. Diamond, who is a pediatrician, claims that if the Abortion Law were enforced, he would gain patients; fewer abortions would be performed and those that would be performed would result in more live births, because the law requires a physician to attempt to preserve the life of the aborted fetus. By implication, therefore, the pool of potential fee-paying patients would be enlarged. The possibilities that such fetuses would survive and then find their way as patients to Diamond are speculative, and “unadorned speculation will not suffice to invoke the federal judicial power.” Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26, 44 (1976). Diamond’s situation, based on speculation and hoped-for fees is far different from that of the physicians in Wulff, supra, where actual fees were limited by the challenged Missouri statute. Diamond also alleges that, as a physician, he has standing to litigate the standards of medical practice that ought to be applied to the performance of abortions. Although Diamond’s allegation may be cloaked in the nomenclature of a special professional interest, it is simply the expression of a desire that the Illinois Abortion Law as written be obeyed. Article III requires more than a desire to vindicate value interests. See United States v. SCRAP, 412 U. S., at 687. It requires an “ ‘injury in fact’ ” that distinguishes “a person with a direct stake in the" }, { "docid": "5067139", "title": "", "text": "he or she has a concrete, adversary stake in the outcome of the litigation and will suffer “injury in fact” if the statute is enforced. Second, as a prudential matter, the plaintiff must generally assert his or her own legal rights. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). In abortion cases, however, physicians may assert the legal rights of their pregnant patients if the physicians themselves are threatened with actual injury, such as the risk of criminal penalties for noncompliance with abortion regulations. Bolton, supra; Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). The plaintiffs are two adult married women in the second trimester of pregnancy, five physicians, and two corporations which render abortion services. The women are interested in obtaining abortions, and the physicians all regularly perform abortions. The women have standing to complain of the provisions which could affect their decision to have an abortion. These provisions include § 2(2), the definition of viability; § 3(2), informed consent; § 3(3), spousal consent; § 4, abortions after the first trimester; § 5(2), the two-doctor concurrence requirement in post-viability abortions; § 7, the termination of parental rights; § 8, notice of termination of parental rights; § 9, the ban on saline abortions; and § 10, the reporting requirements to the extent that they infringe on the woman’s privacy rights. They may also challenge sections which endanger their other constitutional rights, such as the right to procedural due process of law threatened by § 7 (termination of parental rights) of the Act. The five physicians have standing to challenge those provisions which impose obligations on them directly and affect either their own legal interests or the rights of their pregnant patients. They may attack all the provisions which the women have standing to attack except for §§ 7 and 8, the termination of and the notice of termination of parental rights. These two sections impose no duty on the physician directly. Danforth, supra, 428 U.S., at 62 n. 2, 96 S.Ct. 2831. Additionally, the physician plaintiffs have standing to challenge" }, { "docid": "1683271", "title": "", "text": "S.Ct. at 727. Because the right to choose abortion is a fundamental right, any state regulation restricting a woman’s right to choose abortion “must be supported by a compelling state interest.” Akron, 103 S.Ct. at 2491; Roe v. Wade, 410 U.S. at 155, 93 S.Ct. at 727. The Supreme Court has recognized two compelling state interests that will justify State regulation of abortion: First, a State has an “important and legitimate interest in protecting the potentiality of human life.” Although this interest exists “throughout the course of the woman’s pregnancy,” it becomes compelling only at viability, the point at which the fetus “has the capability of meaningful life outside the mother’s womb.” At viability this interest in protecting the potential life of the unborn child is so important that the State may proscribe abortions altogether, “except when it is necessary to preserve the life or health of the mother.” Second, because a State has a legitimate concern with the health of women who undergo abortions, “a State may properly assert important interests in safeguarding health [and] in maintaining medical standards.” ... (T)his health interest does not become compelling until “approximately the end of the first trimester” of pregnancy. Until that time, a pregnant woman must be permitted, in consultation with her physician, to decide to have an abortion and to effectuate that decision “free of interference by the State.” Akron, 103 S.Ct. at 2491-92 (citations omitted) (footnote omitted). Subsequent to its decision in Roe v. Wade, the Supreme Court has several times found it necessary to evaluate state regulations that in some way affect a woman’s ability to exercise her fundamental right to terminate her pregnancy. See City of Akron v. Akron Center for Reproductive Health, supra; Planned Parenthood v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983); Simopoulos v. Virginia, 462 U.S. 506, 103 S.Ct. 2532, 76 L.Ed.2d 755 (1983); Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976); Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Connecticut v. Menillo, 423 U.S. 9, 96 S.Ct. 170," }, { "docid": "4031091", "title": "", "text": "own interests, both financial and professional, in practicing medicine pursuant to his best medical judgment, are thus affected by a statutory provision that he alleges violates the federal constitutional rights of potential abortion patients. Such a threatened injury in fact is neither speculative nor inchoate. Weyhrich therefore has Article III standing to raise each of his challenges. As a prudential matter, even when a plaintiff has Article III standing, we ordinarily do not allow third parties to litigate on the basis of the rights of others. See Coalition of Clergy, Lawyers, & Professors v. Bush, 310 F.3d 1153, 1163 (9th Cir. 2002), cert. denied, 538 U.S. 1031, 123 S.Ct. 2073, 155 L.Ed.2d 1060 (2003). Since at least Singleton v. Wulff, however, it has been held repeatedly that physicians may acquire jus tertii standing to assert their patients’ due process rights in facial challenges to abortion laws. 428 U.S. 106, 117-18, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (plurality opinion) (“[I]t generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with\" the abortion decision_”); cf. Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (allowing physician to assert privacy rights of patients because of the confidential nature of the relationship and because the rights of the latter were “likely to be diluted or adversely affected” if they could not be asserted by the physician). Indeed, physicians and clinics performing abortions are routinely recognized as having standing to bring broad facial challenges to abortion statutes. See, e.g., City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 440 n. 30, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (Akron I), overruled on other grounds by Casey, 505 U.S. at 882, 112 S.Ct. 2791; Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 62 & n. 2, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Planned Parenthood of S. Ariz. v. Lawall, 180. F.3d 1022, amended by 193 F.3d 1042 (9th Cir.1999). We may therefore consider the constitutional arguments Weyhrich raises solely on his patients’ behalf. See Singleton," }, { "docid": "9404168", "title": "", "text": "in s. 253.07(l)(a), including natural family planning information. . Plaintiffs, as physicians and abortion facilities, have standing to bring this suit under Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 62, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). See Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463, 465 (7th Cir.1998). . Those provisions severed from AB 441 included: § 253.10(3)(c)l.g requiring physicians to inform their patients that fetal ultrasound imaging and auscultation of fetal heartone services are available; § 253.10(3)(c) 1 .j. requiring physicians to inform their patients of “[a]ny other information that a reasonable patient would consider material and relevant;” and certain parts of § 253.10(3)(d) and § 46.245(1) permitting the state to charge physicians a fee for the state-printed and county-compiled materials that AB 441 required physicians to distribute to patients. See Karlin v. Foust, 975 F.Supp. 1177, 1229 (W.D.Wis.1997). . In vagueness challenges alleging infringement of constitutionally protected rights, courts may strike down a statute as vague and facially invalid even if that statute is not im-permissibly vague in all of its applications. See Kolender v. Lawson, 461 U.S. 352, 358 n. 8, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); Village of Hoffman Estates, 455 U.S. at 494-95, 102 S.Ct. 1186. . For our purposes, these two arguments are more or less the same in that plaintiffs believe that a physician should not be held liable under AB 441's enforcement provisions for good faith medical determinations that are later adjudged to be medically unreasonable. . AB 441’s medical emergency provision provides that a physician can bypass the waiting period and informed consent requirements if delaying the abortion for twenty-four hours would create a \"serious risk of substantial and irreversible impairment of one or more of the woman’s major bodily functions.” Wis. Slat. § 253.10(2)(d). Before the district court, plaintiffs challenged this definition on the ground that it was too narrow and would prevent some women with serious health risks from obtaining immediate abortions. Plaintiffs argued that the effect of this provision would be to .contravene one of the central principles of Casey that a" }, { "docid": "22781620", "title": "", "text": "heightened scruti ny is appropriate “whenever regulations effectively prohibit, rather than simply limit, a particular exercise of constitutional rights”)- Specifically, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner, 107 S.Ct. at 2261. Guided by these principles, we turn now to the challenged court-ordered release regulation of MCCI and the district court’s assessment of its validity. MCCI inmates allege that the Institution’s policies constitute an unconstitutional infringement upon their right to elect to terminate their pregnancies. In Roe v. Wade, the Supreme Court held that “[the] right of privacy ... is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” 410 U.S. at 153, 93 S.Ct. at 727; accord City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 419, 103 S.Ct. 2481, 2487, 76 L.Ed.2d 687 (1983) (“Akron”); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 60, 96 S.Ct. 2831, 2837, 49 L.Ed.2d 788 (1976). More recently, the Court has specifically observed that [f]ew decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision — with the guidance of her physician and within the limits specified in Roe —whether to end her pregnancy. A woman’s right to make that choice freely is fundamental. Thornburgh v. American College of Obstetricians, 476 U.S. 747, 772, 106 S.Ct. 2169, 2185, 90 L.Ed.2d 779 (1986). MCCI inmates contend that the County’s policy, requiring pregnant inmates who want an abortion that has not been characterized by the jail physician as “medically necessary” first to obtain a court order to be released on their own recognizance, impedes their freedom safely to choose abortion and impermissibly delays the exercise of that choice. At the outset, it is necessary to articulate our understanding of the County’s policy as reflected by the record, the district court’s opinion, the County’s brief and the arguments of the parties before this Court. Prior to the district court’s challenged order, the County’s policy with respect to certain inmate-requested" }, { "docid": "16185291", "title": "", "text": "and medical providers all had standing to raise their own interests (or the interests of members) and those of patients and customers in challenging the Act’s constitutionality. We affirm this general conclusion.” Id. at 290 n. 6. As in Ohio Association, the standing questions in American College turned on the doctors actually participating in the suit. The reason is obvious: The doctors provide the standing “bridge” between the association and the patients. All of the support cited in American College demonstrates the need for physicians to participate in the suit to establish standing. Id. (citing City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (challenge by abortion clinics and a physician); Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983) (challenge by Planned Parenthood, two physicians and an abortion clinic); Planned Parenthood v. Danforth, 428 U.S. 52, 62, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (challenge by Planned Parenthood and two physicians); Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (challenge by two physicians)). Other cases demonstrate this need for a caretaker, such as a parent or advising officer, to be a party to the suit to provide the bridge between the association and the harmed individual. See Fraternal Order of Police v. United States, 152 F.3d 998 (D.C.Cir.1998) (granting standing for an organization whose members included chief law enforcement officers based on the chief law enforcement officer’s standing to advance the equal-protection rights of subordinate officers); Public Citizen v. FTC, 869 F.2d 1541 (D.C.Cir.1989) (organizations had standing to challenge an FTC regulation that exempted certain promotional items from the requirement that advertising for smokeless tobacco products carry health warnings, since the members of the organizations included parents of children who might be injured by the lack of warnings). In summary, I agree with the manner in which the District Court applied the Amato standard. I am convinced that PPS has neither successfully met (nor circumnavigated, as the case may be) Ama-to’s requirement that PPS must have itself suffered" }, { "docid": "1541502", "title": "", "text": "and causation from a statute that denied them Medicaid reimbursement for abortions they performed. The statute both aimed at preventing the physicians from performing abortions and operated immediately and automatically on the physicians by denying them reimbursement for abortions already performed at the time they sued, obviating any need to base causation on the likelihood of any third party action, such as the patients’ payment to their physicians. Compare Singleton with Diamond v. Charles, — U.S. -, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), where a pediatrician was denied standing to defend the constitutionality of an Illinois law obligating physicians performing abortions to attempt to save the lives of viable fetuses. The statute imposed no legal obligation or intended burden upon Diamond, the pediatrician. The Court, expressly distinguishing Singleton, found that Diamond’s alleged injury — loss of business resulting from contraction of the pool of potential fee-paying patients — was based on the speculative independent action of third parties, namely, the possibilities that such fetuses would survive and then find their way as patients to Diamond. Id. 106 S.Ct. at 1705. . Accord Mideast Systems & China Civil Constr. Saipan Joint Venture v. Model, 792 F.2d 1172, 1178 (D.C.Cir.1986) (\"the presence of an independent variable between either the harm and the relief or the harm and the conduct makes causation sufficiently tenuous that standing should be denied’’); Action Alliance, 789 F.2d at 938 (causation and redressability present where \"the ultimate relief appellants seek cannot sensibly be viewed as dependent upon the actions of third parties\"). . Accord Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). There, parents of black children who were attending public schools undergoing desegregation challenged as unlawful certain IRS guidelines and procedures designed to carry out the IRS policy of denying tax-exempt status to racially discriminatory private schools. The parents alleged that the guidelines and procedures were inadequate since many racially segregated private schools continued to receive tax exemptions. This diminished the plaintiffs’ children's ability to receive an education in racially integrated public schools. The injury was alleged to be traceable to" }, { "docid": "17430572", "title": "", "text": "is the one suffered by pregnant minors who require an abortion for health reasons. Amici argue that it is “not sufficient to merely show that some unknown medical conditions exist that may at some unknown future date be suffered by some unknown minors.\" Brief of Amici New Hampshire Legislators at 8. In fact, Dr. Wayne Goldner listed in his unopposed declaration five specific conditions that could require abortion to protect a minor’s health: preeclampsia, eclampsia, premature rupture of the membranes surrounding the fetus, spontaneous chorioamnionitis, and heavy bleeding during pregnancy. Declaration of Wayne Goldner, M.D., ¶¶ 8-15. Moreover, appellee abortion providers themselves face an imminent injury — civil or criminal prosecution for performing an abortion in violation of the Act — sufficient to confer on them Article III standing. See Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 62, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (holding that physician abortion providers asserting their own rights and those of their patients had standing to challenge abortion regulation and “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief\"). Because of their close relationship to the abortion decision, and the rights involved, providers routinely have jus tertii standing to assert the rights of women whose access to abortion is restricted. See Singleton v. Wulff, 428 U.S. 106, 117, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“[I]t generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decisions....”). Indeed, as the Ninth Circuit has noted, “physicians and clinics performing abortions are routinely recognized as having standing to bring broad facial challenges to abortion statutes.” Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 916-18 (9th Cir.2004) (discussing abortion providers' third-party standing and citing cases). . In Salerno, the Court considered a facial challenge to the Bail Reform Act, 18 U.S.C. § 3142(e), which permits pretrial detention on the ground of dangerousness. The Court held that the provision in question, which was accompanied by strict procedural safeguards, did not constitute a facial" }, { "docid": "16185290", "title": "", "text": "along with several of its member schools, sought standing for parents of children in the schools to challenge the requirement of state formulated testing in private schools. Ohio Association, 92 F.3d at 421. The Court found that the “OAIS member schools also have standing to assert the constitutional right of parents to direct their children’s education.” Id. at 422 (emphasis added). Thus the Court did not find that the association had standing to assert parents’ interests, but that individual schools had standing to do so. Thus the operative distinction between Ohio Association and PPS’ argument is that in Ohio Association both the association and its individual members jointly brought the suit, but here, PPS attempts to bring its claims to court without the participation of any of its members. American College presents the same problems for PPS. In American College, the challenge was brought by a team of an association, doctors, and medical providers. American College, 737 F.2d at 289. In a footnote the Court stated that the “district court concluded that plaintiff physicians, ACOG, and medical providers all had standing to raise their own interests (or the interests of members) and those of patients and customers in challenging the Act’s constitutionality. We affirm this general conclusion.” Id. at 290 n. 6. As in Ohio Association, the standing questions in American College turned on the doctors actually participating in the suit. The reason is obvious: The doctors provide the standing “bridge” between the association and the patients. All of the support cited in American College demonstrates the need for physicians to participate in the suit to establish standing. Id. (citing City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (challenge by abortion clinics and a physician); Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983) (challenge by Planned Parenthood, two physicians and an abortion clinic); Planned Parenthood v. Danforth, 428 U.S. 52, 62, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (challenge by Planned Parenthood and two physicians); Singleton v. Wulff, 428 U.S. 106, 96" }, { "docid": "8822497", "title": "", "text": "[Section 211.411 probably should read 211.441.] The court held that Freiman did have standing to challenge section 188.045. Section 188.045 provides: Any woman seeking an abortion in the state of Missouri shall be verbally informed of the provisions of section 188.-040 by the attending physician and the woman shall certify in writing that she has been so informed. The court, however, did not find section 188.045 to be unconstitutional. Thus Frei-man’s motion for summary judgment was denied. Appellee John D. Ashcroft, Attorney General of Missouri, then moved for summary judgment dismissing this cause, which was granted by the district court. Because section 188.045 is a violation of the due process and equal protection clauses of the Fourteenth Amendment, we reverse in part. The standing of physicians to challenge section 188.040 of the Missouri statutes was previously litigated in Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1975). In Danforth, the Supreme Court denied standing, stating: The physician-appellants do not contend that this section of the Act [Mo.Rev. Stat. § 188.040 (Vernon 1978)] imposes any obligation on them or that its operation otherwise injures them in fact. They do not claim any interest in the question of who receives custody that is “sufficiently concrete” to satisfy the “case or controversy” requirement of a federal court’s Art. III jurisdiction. Singleton v. Wulff [428 U.S. 106, 112, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1975)]. Accordingly, the physician-appellants do not have standing to challenge § 7 of the Act [Mo.Rev.Stat. § 188.040 (Vernon 1978)]. Id. at 62 n.2, 96 S.Ct. at 2838. On the basis of the Supreme Court’s holding, the three-judge district court in this case held that the Singleton requirement of injury in fact was not satisfied sufficiently to establish Freiman’s standing to challenge section 188.040. Freiman v. Ashcroft, 440 F.Supp. 1193 (E.D.Mo.1977). This court has also once before commented upon standing of physicians to challenge a very similar statute. In Hodgson v. Lawson, 542 F.2d 1350 (8th Cir. 1976), this court considered the constitutionality of Minn.Stat.Ann. § 145.415(3) (Supp.1978), which reads in part: “[W]henever an abortion" }, { "docid": "15193734", "title": "", "text": "8 is necessary to accomplish these interests. The record demonstrates the TDH has never experienced a violation of state or federal restrictions on the funding of abortion and the Plaintiffs go to enormous efforts to keep their subsidized family planning services and privately-funded abortion services separated. Accordingly, the Court finds the Plaintiffs have shown a likelihood of success on the merits of their unconstitutional conditions claim. 2. Undue Burden The Plaintiffs also contend Rider 8 places an undue burden on their patients’ right to choose to terminate their pregnancies. Health care providers have standing to raise constitutional rights on behalf of their patients, so long as they meet the requirements for Article III standing. See Singleton v. Wulff, 428 U.S. 106, 118, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“It is generally appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision”); Okpalobi v. Foster, 190 F.3d 337, 352 (5th Cir.1999) (“The general rule, as formulated by Singleton, is that physicians have standing to raise challenges to laws regulating abortion based on the constitutional rights of their patients because they can adequately represent the patients’ interest.”); see also Planned Parenthood of Minn., Inc. v. Citizens for Community Action, 558 F.2d 861, 865 n. 3 (8th Cir.1977). The Defendant does not contest the Plaintiffs face a concrete injury if they do not receive the funding they were conditionally awarded in March 2003; and that injury will be redressed if the Defendant is enjoined from enforcing Rider 8. Therefore, Article III standing is apparent, and the Plaintiffs have a right to assert their patients’ constitutional right to be free from an undue burden when choosing whether to terminate their pregnancies. Singleton, 428 U.S. at 117, 96 S.Ct. 2868 (“Aside from the woman herself, therefore, the physician is uniquely qualified to litigate the constitutionality of the State’s interference with, or discrimination against, that decision.”). A law constitutes an undue burden if it “has the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”" } ]

[ { "docid": "22550619", "title": "", "text": "prosecuted for trafficking in contraband constitutes a per se denial of due process. As I do not accept this proposition, I concur in the judgment of the Court and much of the plurality opinion directed specifically to Hampton’s contention. I am not able to join the remainder of the plurality opinion, as it would unnecessarily reach and decide difficult questions not before us. In United States v. Russell, 411 U. S. 423, 431 (1973), we noted that significant “difficulties [attend] the notion that due process of law can be embodied in fixed rules.” See Rochin v. California, 342 U. S. 165, 173 (1952); cf. Sherman v. United States, 356 U. S. 369, 384-385 (1958) (Frankfurter, J., concurring in result). We also recognized that the practicalities of combating the narcotics traffic frequently require law enforcement officers legitimately to supply “some item of value that the drug ring requires.” 411 U. S., at 432. Accordingly, we held that due process does not necessarily foreclose reliance on such investigative techniques. Hampton would distinguish Russell on the ground that here contraband itself was supplied by the Government, while the phenyl-2-propa-none supplied in Russell was not contraband. Given the characteristics of phenyl-2-propanone, this is a distinction without a difference and Russell disposes of this case. But the plurality opinion today does not stop there. In discussing Hampton's due process contention, it enunciates a per se rule: “[In Russell,] [w]e ruled out the possibility that the defense of entrapment could ever be based upon governmental misconduct in a case, such as this one, where the predisposition of the defendant to commit the crime was established.” Ante, at 488-489. (Emphasis supplied.) “The remedy of the criminal defendant with respect to the acts of Government agents, which . . . are encouraged by him, lies solely in the defense of entrapment.” Ante, at 490. (Emphasis supplied.) The plurality thus says that the concept of fundamental fairness inherent in the guarantee of due process would never prevent the conviction of a predisposed defendant, regardless of the outrageousness of police behavior in light of the surrounding circumstances. I do not" } ]

[ { "docid": "23604502", "title": "", "text": "objective constitutional defense based on due process: While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, the instant case is distinctly not of that breed____ The law enforcement conduct here stops far short of violating that “fundamental fairness, shocking to the universal sense of justice” mandated by the Due Process Clause of the Fifth Amendment. Id. at 431-32, 93 S.Ct. at 1642-43 (citation omitted), (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 303, 4 L.Ed.2d 268 (I960)). The existence of a constitutionally based outrageous conduct defense was called into question in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). The Hampton plurality concluded that the defendant’s predisposition to the crime would bar an outrageous conduct defense. Id. at 490, 96 S.Ct. at 1650 (Rehnquist J., joined by White J. and Burger C.J.). Justices Powell and Blackmun concurred in the result but stated their view that a due process outrageous conduct defense would be available in an appropriate case, although “[pjolice overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.” Id. at 495 n. 7, 96 S.Ct. at 1652 n. 7 (Powell J., concurring). The three dissenters reaffirmed their belief in the objective entrapment rule and would have held that the police conduct was sufficiently offensive to bar Hampton’s conviction. Id. at 497, 96 S.Ct. at 1653 (Brennan J., dissenting, joined by Stewart J. and Marshall J.). Thus, a majority of the court recognized the potential availability of an outrageous police conduct defense no matter what the defendant’s criminal predisposition. We have repeatedly held that the due process outrageous conduct defense “survived the Court’s review in Hampton.” United States v. Bagnariol, 665 F.2d 877, 882 (9th Cir.1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). See also United States v. So, 755 F.2d 1350, 1353 (9th Cir.1985);" }, { "docid": "17207134", "title": "", "text": "77 L.Ed. 413 (1932), the Supreme Court adopted the subjective approach to the defense. That approach focuses not on the government’s conduct (except to the extent that it establishes an inducement to commit the crime), but on the defendant’s predisposition to commit the crime. A predisposed defendant has no defense based on offensive governmental conduct. The Court rejected the “objective” view espoused by Justice Roberts’ concurrence, which focused on government conduct and would have permitted judges to dismiss indictments of even predisposed defendants if the investigative tactics were sufficiently intolerable. In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the Court once again rejected the objective approach to entrapment. The Court emphasized that the defense did not authorize judges to dismiss prosecutions based on police conduct they found to be overzealous. Such a rule, the Court observed, would “give the federal judiciary a ‘chancellor’s foot’ veto over law enforcement practices of which it did not approve.\" 411 U.S. at 435, 93 S.Ct. 1637. However, the Court observed that it “may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Id. at 431-32, 93 S.Ct. 1637. In Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), the Court’s plurality opinion recanted the “due process” defense envisioned by Russell’s dicta, and explicitly limited defendants who complain of government conduct to the entrapment defense. Id. at 490, 96 S.Ct. 1646. However, this effort failed to garner a majority of the Court. Rather, Justice Powell’s concurrence stated that the Due Process Clause might be violated where “[pjolice over involvement in crime ... reach[es] a demonstrable level of outrageousness.” Id. at 495 n. 7, 96 S.Ct. 1646 (Powell, J., concurring). The dicta in Russell, which was reaffirmed by the two concurring and three dissenting justices in Hampton, created the due process challenge to criminal prosecutions. Under it, even persons who are predisposed to commit a charged crime can" }, { "docid": "22437422", "title": "", "text": "342 U.S. 165, [72 S.Ct. 205, 96 L.Ed. 183] (1952), the instant case is distinctly not of that breed. [The agent’s] contribution of propanone to the criminal enterprise already in progress was scarcely objectionable. . . . The law enforcement conduct here stops far short of violating that “fundamental fairness, shocking to the universal sense of justice,” mandated by the Due Process Clause of the Fifth Amendment. Id. at 431-32, 93 S.Ct. at 1642-1643. The possibility of a due process defense based on the extent of government involvement in the commission of the offense also survived the Court’s review in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). In Hampton, the Court affirmed a trial court’s refusal to instruct the jury that the defendant could not be convicted if the jury found the government had supplied the defendant the illegal narcotic, which the defendant then sold to government agents. The plurality opinion, written by the author of Russell and representing the views of three Justices, would have foreclosed a due process defense based on government involvement if the defendant was predisposed to commit the crime. Id. at 490, 96 S.Ct. at 1650. The two concurring Justices found it unnecessary to decide whether predisposition precludes a due process defense as well as the entrapment defense, leaving that question open. Id. at 492-95, 96 S.Ct. at 1651-1652 (Powell, J., concurring). Three dissenting justices also declined to decide the constitutional issue. Id. at 497, 96 S.Ct. at 1653 (Brennan, J., dissenting). As this court has said, “Hampton left open the possibility that the conviction of a predisposed defendant may be reversed where the government’s involvement in the criminal scheme reaches such an outrageous level as to violate due process.” United States v. Gonzales-Benitez, 537 F.2d 1051, 1055 (9th Cir.), cert. denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d 291 (1976). See United States v. Prairie, 572 F.2d 1316, 1319 & n.3 (9th Cir. 1978). Although excess government involvement in a criminal enterprise may give rise to a due process defense, the courts rarely have found the" }, { "docid": "5461225", "title": "", "text": "94 S.Ct. 124, 38 L.Ed.2d 56 (1973). this stage of this case, our review is limited to the face of the indictment. . The Disorderly Behavior Clause provides that “Each house may . punish its Members for disorderly Behaviour.” . At the July 11 hearing before Judge Mishler, Congressman Myers, joining with defendants indicted in other Abscam cases, also contended that the indictment should be dismissed because the tactics used by the Government during its involvement in the criminal activity reached that “demonstrable level of outrageousness” that violates the Due Process Clause. Hampton v. United States, 425 U.S. 484, 495 n.7, 96 S.Ct. 1646, 1653 n.7, 48 L.Ed.2d 113 (1976) (Powell, J., concurring). In Hampton a three-member plurality acknowledged the possibility of a due process defense based on outrageous law enforcement conduct, but appeared to indicate that, as with the entrapment defense, the defendant’s predisposition to commit the crime would make the due process defense unavailable. Id. at 490-91, 96 S.Ct. at 1650-1651. However, five members of the Court indicated that a due process defense, based on outrageous law enforcement conduct, would be available and would not be defeated by evidence of the defendant’s predisposition. Id. at 493-95, 96 S.Ct. at 1651-1653 (Powell, J., with whom Blackmun, J., concurs, concurring), 497, 96 S.Ct. at 1653-1654 (Brennan, J., with whom Stewart and Marshall, JJ., concur, dissenting). The due process defense has been upheld by a divided panel of the Third Circuit, United States v. Twigg, 588 F.2d 373 (3d Cir. 1978). See also United States v. Archer, 486 F.2d 670, 676-77 (2d Cir. 1973). Judge Mishler took under advisement the motion to dismiss on due process grounds and the request for an evidentiary hearing in support of that claim. The due process claim is not before us on this appeal, and we express no views on its merit or whether, in the event of denial, it would be reviewable before trial. . A possible additional argument is that a bribery sting subjects Members of Congress to the risk of erroneous conviction. While no system of law enforcement can totally eliminate that" }, { "docid": "18854966", "title": "", "text": "its commission_,” Sorrells, supra 287 U.S. at 442 [53 S.Ct. at 212-13], the defendant is protected by the defense of entrapment. If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provisions of state or federal law. Id. at 490, 96 S.Ct. at 1650 (emphasis added). Thus, “[t]he remedy of the criminal defendant with respect of the acts of Government agents,” Justice Rehnquist concluded, “lies solely in the defense of entrapment.” Id. at 490, 96 S.Ct. at 1650 (emphasis added). Justice Rehnquist’s recantation of his Russell dicta, however, failed to gain a majority in Hampton. Justices Blackmun and Powell, who joined Justice Rehnquist in Russell, wrote separately to say that, although the facts of Russell and Hampton did not warrant dismissal under due process, they were “unwilling to conclude that an analysis other than one limited to predisposition would never be appropriate under due process principles.” Hampton, 425 U.S. at 493, 96 S.Ct. at 1651-52 (Powell, J., concurring in the judgment). Justices Brennan, Stewart and Marshall, steadfastly adhering to the “objective” theory of entrapment which had failed to become law in Sorrells, Sherman and Russell, dissented from Justice Rehnquist’s plurality opinion in Hampton, in part, to state that courts should be able to dismiss indictments “where the conduct of law enforcement authorities is sufficiently offensive, even though the individuals entitled to invoke such a defense might be predisposed.” Hampton, 425 U.S. at 497, 96 S.Ct. at 1654 (Brennan, J., dissenting). Thus, in Hampton, five Justices, two in dicta and three in dissent, left open the “objective” defense door which Justice Rehnquist had unlocked in Russell. We note, however, that just as Justice Rehnquist’s comments in Russell were dicta, so too were his comments (and those of Justices Powell and Blackmun) in Hampton. C. Sixth Circuit Authority This court first addressed a “due process” defense claim in United States v. Leja, 563 F.2d 244 (6th Cir.1977), cert. denied, 434 U.S. 1074, 98 S.Ct. 1263, 55" }, { "docid": "22107123", "title": "", "text": "v. United States, 425 U.S. 484, 491, 96 S.Ct. 1646, 48 L.Ed.2d 113 (Powell, J. concurring); Id. 495, 96 S.Ct. 1653 (Brennan, J., dissenting). The Hampton decision is fully discussed infra. It has often been suggested that, as an alternative to use of the due process clause, courts may base their refusal to countenance outrageous law enforcement practices upon their supervisory powers. These powers generally have been used to regulate the conduct of judicial proceedings, and their extension to the governance of law enforcement agencies traditionally “supervised by the executive branch or by passage of laws by Congress,” United States v. Leja, 563 F.2d 244, 247 (6th Cir. 1977), cert. denied, 434 U.S. 1074, 98 S.Ct. 1263, 55 L.Ed.2d 780 (1978), raises serious questions about the power and role of the federal judiciary in our society. Because I question the authority of a federal court to regulate the conduct of DEA agents, 1 believe the question of government overinvolvement should be considered in terms of the constitutional duty of the courts to protect individual rights under the due process clause. . Phenyl-2-propanone is an ingredient indispensible to the manufacture of amphetamines, or “speed.” Although p-2-p is not contraband, it is difficult to obtain. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1978). . In his plurality opinion in Hampton, Justice Rehnquist stated: “In [Russel/,] [w]e ruled out the possibility that the defense of entrapment could ever be based upon governmental misconduct in a cáse, such as this one, where the predisposition of the defendant to commit the crime was established. . . . The remedy of the criminal defendant with respect to the acts of Government agents, which . . . are encouraged by him, lies solely in the defense of entrapment.” 425 U.S. at 488-90, 96 S.Ct. at 1649-50. (Emphasis supplied.) . Id. at 492-93, 96 S.Ct. at 1651-52 (Powell, J. concurring) (citations omitted). . The dissenters endorsed the traditional objective position for entrapment cases generally, but they also specifically agreed with Justice Powell’s position on the possibility of use of the due" }, { "docid": "5461226", "title": "", "text": "based on outrageous law enforcement conduct, would be available and would not be defeated by evidence of the defendant’s predisposition. Id. at 493-95, 96 S.Ct. at 1651-1653 (Powell, J., with whom Blackmun, J., concurs, concurring), 497, 96 S.Ct. at 1653-1654 (Brennan, J., with whom Stewart and Marshall, JJ., concur, dissenting). The due process defense has been upheld by a divided panel of the Third Circuit, United States v. Twigg, 588 F.2d 373 (3d Cir. 1978). See also United States v. Archer, 486 F.2d 670, 676-77 (2d Cir. 1973). Judge Mishler took under advisement the motion to dismiss on due process grounds and the request for an evidentiary hearing in support of that claim. The due process claim is not before us on this appeal, and we express no views on its merit or whether, in the event of denial, it would be reviewable before trial. . A possible additional argument is that a bribery sting subjects Members of Congress to the risk of erroneous conviction. While no system of law enforcement can totally eliminate that risk, it is difficult to believe that the risk is enhanced by a sting operation. On the contrary, because the operation is planned by government agents and can be carried out, as this one was, with a film or videotape record of critical events, the chances of an erroneous conviction would seem to be markedly less than in “real” bribe cases, where frequently the only available evidence is the discreditable testimony of the person who paid the bribe. . Appellant also claims that this has occurred in this case, a point considered infra. . Appellant also seeks to bolster his challenge to a bribery sting operation by contending that a prosecution founded on this technique presents a political question inappropriate for the Judicial Branch. This is simply another way of characterizing the public policy issues that are available for resolution by Congress. . We need not consider whether an indictment might be subject to a motion to dismiss in the event that the privileged evidence constituted such a large proportion of the evidence before the" }, { "docid": "7047528", "title": "", "text": "the government’s conduct in formulating, carrying out, and enmeshing defendant in the mail fraud scheme was so outrageous that defendant’s conviction should be overturned as a violation of due process of law. The Supreme Court recognized this defense in United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1641-42, 36 L.Ed.2d 366 (1973), when it stated, “[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183] (1952) When the Supreme Court considered the due process defense three years later in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), the eight Justices who participated divided into three groups. The plurality opinion, written by Justice Rehnquist, stated that absent a violation of some protected right of the defendant, the Due Process Clause cannot be invoked to overturn a conviction because of governmental misconduct. Justice Rehnquist wrote, “The remedy of the criminal defendant with respect to the acts of Government .agents ... lies solely in the defense of entrapment.” Id. at 490, 96 S.Ct. at 1650. The due process defense survives, however, because a majority of the Justices, two who concurred in the result of the case and three who dissented, rejected the position “that the concept of fundamental fairness inherent in the guarantee of due process would never prevent the conviction of a predisposed defendant, regardless of the outrageousness of police behavior in light of the surrounding circumstances.” Id. at 492, 96 S.Ct. at 1651 (Powell, J., concurring). See also id. at 497, 96 S.Ct. at 1653 (Brennan, J., dissenting). Justice Powell added, “I emphasize that the cases, if any, in which proof of predisposition is not dispositive will be rare. Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.” Id. at 495 n. 7, 96 S.Ct. at 1653 n. 7. The defense that the" }, { "docid": "22165151", "title": "", "text": "on the “egregious” government conduct, and viewed the facts of the case as presenting an instance of the “sufficiently offensive” governmental conduct contemplated in Russell. Id. at 497, 96 S.Ct. at 1653. Although the two concurring Justices whose opinion was pivotal agreed with the plurality that the government’s supplying of contraband to one later prosecuted for trafficking in contraband does not constitute a per se denial of due process, 425 U.S. at 491, 96 S.Ct. at 1650 (Powell, J., concurring), they disagreed with the plurality view that “the concept of fundamental fairness inherent in the guarantee of due process would never prevent the conviction of a predisposed defendant, regardless of the outrageousness of police behavior in light of the surrounding circumstances.” Id. at 492, 96 S.Ct. at 1651. Thus, a majority of the Court, composed of the three dissenting Justices and the two concurring Justices, has rejected the position “that the defense of entrapment necessarily is the only doctrine relevant to cases in which the Government has encouraged or otherwise acted in concert with the defendant.” Id. at 492 n.2, 96 S.Ct. at 1651 n.2. Justice Powell emphasized, however, that “the cases, if any, in which proof of predisposition is not dispositive will be rare,” and that “[pjolice overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.” Id. at 495 n.7, 96 S.Ct. at 1652 n.7. We have in a prior opinion construed the language of Russell and Hampton to signify that “fundamental fairness will not permit any defendant to be convicted of a crime in which police conduct was ‘outrageous.’ ” United States v. Twigg, 588 F.2d 373, 379 (3d Cir. 1978). In Twigg, the first case since Hampton in which a defendant prevailed on a due process defense, a divided panel of this court held that “the governmental involvement in the criminal activities of this case has reached ‘a demonstrable level of outrageousness.’ ” Id. at 380. In the case before us, the district court held that Twigg compelled a comparable result. The district court based this conclusion in large" }, { "docid": "23604503", "title": "", "text": "Powell and Blackmun concurred in the result but stated their view that a due process outrageous conduct defense would be available in an appropriate case, although “[pjolice overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.” Id. at 495 n. 7, 96 S.Ct. at 1652 n. 7 (Powell J., concurring). The three dissenters reaffirmed their belief in the objective entrapment rule and would have held that the police conduct was sufficiently offensive to bar Hampton’s conviction. Id. at 497, 96 S.Ct. at 1653 (Brennan J., dissenting, joined by Stewart J. and Marshall J.). Thus, a majority of the court recognized the potential availability of an outrageous police conduct defense no matter what the defendant’s criminal predisposition. We have repeatedly held that the due process outrageous conduct defense “survived the Court’s review in Hampton.” United States v. Bagnariol, 665 F.2d 877, 882 (9th Cir.1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). See also United States v. So, 755 F.2d 1350, 1353 (9th Cir.1985); United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983); United States v. Lomas, 706 F.2d 886, 890-91 (9th Cir.1983), aff'd on remand, 723 F.2d 649 (9th Cir.) (per curiam), cert. denied, 464 U.S. 1047, 104 S.Ct. 720, 79 L.Ed.2d 182 (1984); United States v. Wylie, 625 F.2d 1371, 1377 (9th Cir.1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981); United States v. McQuin, 612 F.2d 1193, 1196 (9th Cir.), cert. denied, 445 U.S. 955, 100 S.Ct. 1608, 63 L.Ed.2d 791 (1980); United States v. Prairie, 572 F.2d 1316, 1319 & n. 3 (9th Cir.1978); United States v. Ryan, 548 F.2d 782, 789 (9th Cir.1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977); United States v. Gonzalez-Benitez, 537 F.2d 1051, 1055 (9th Cir.), cert. denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d 291 (1976). We now reaffirm once again that a defendant may raise a due process-based outrageous government conduct defense to a criminal indictment. B. Bogart was the target of the government’s activity here. He," }, { "docid": "18782781", "title": "", "text": "Cir.1984), and the outrageous government conduct defense focuses, not surprisingly, on the conduct of the government, see, e.g., United States v. So, 755 F.2d 1350, 1353 (9th Cir.1985). In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the Supreme Court recognized that there may be “situation[s] in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Id. at 431-32, 93 S.Ct. at 1643 (citation omitted). A plurality of the Court in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), concluded that the outrageous conduct defense was not available to a defendant who was predisposed to commit the crime, id. at 490, 96 S.Ct. at 1650, but a majority of the Court rejected this view and recognized the validity of the defense in appropriate circumstances irrespective of the defendant’s criminal predisposition, see id. at 495 n. 7, 96 S.Ct. at 1653 n. 7 (Powell, J., concurring, joined by Blackmun, J.); id. at 497, 96 S.Ct. at 1653 (Brennan, J., dissenting, joined by Stewart and Marshall, J.J.). We recently reaffirmed the view we have consistently expressed. In United States v. Bogart, 783 F.2d 1428 (9th Cir.1986), we held that, regardless of evidence of predisposition, “a defendant may raise a due process-based outrageous government conduct defense to a criminal indictment.” Id. at 1433 (citing cases). We have also stated that “the due process channel which Russell kept open is a most narrow one.” United States v. Ryan, 548 F.2d 782, 789 (9th Cir.), cert. denied, 429 U.S. 939, 97 S.Ct. 354, 50 L.Ed.2d 308 (1976), and 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977). The outrageous government conduct defense is available only where “the government is so involved in the criminal endeavor that it shocks our sense of justice.” So, 755 F.2d at 1353; see also, e.g., Shaw v. Winters, 796 F.2d 1124, 1125 (9th Cir.1986) (“violation of ‘fundamental fairness, shocking to the universal sense of justice’ ”) (quoting Russell, 411" }, { "docid": "22437423", "title": "", "text": "due process defense based on government involvement if the defendant was predisposed to commit the crime. Id. at 490, 96 S.Ct. at 1650. The two concurring Justices found it unnecessary to decide whether predisposition precludes a due process defense as well as the entrapment defense, leaving that question open. Id. at 492-95, 96 S.Ct. at 1651-1652 (Powell, J., concurring). Three dissenting justices also declined to decide the constitutional issue. Id. at 497, 96 S.Ct. at 1653 (Brennan, J., dissenting). As this court has said, “Hampton left open the possibility that the conviction of a predisposed defendant may be reversed where the government’s involvement in the criminal scheme reaches such an outrageous level as to violate due process.” United States v. Gonzales-Benitez, 537 F.2d 1051, 1055 (9th Cir.), cert. denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d 291 (1976). See United States v. Prairie, 572 F.2d 1316, 1319 & n.3 (9th Cir. 1978). Although excess government involvement in a criminal enterprise may give rise to a due process defense, the courts rarely have found the defense available. The Supreme Court has never reversed a conviction on this ground. We have not done so since Greene. “This court has emphasized that the due process channel which Russell kept open is a most narrow one, to be invoked only when the government’s conduct is so grossly shocking and so outrageous as to violate the universal sense of justice.” United States v. Ryan, 548 F.2d 782, 789 (9th Cir. 1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977). See United States v. Smith, 538 F.2d 1359, 1361 (9th Cir. 1976). The government set Heald up as “bait” by spreading word generally that So-Cal was interested in promoting gambling legislation and in meeting politicians who shared that interest. This tactic led Heald to Gallagher, who volunteered the services of Bagnariol and Walgren. Gallagher stated that appellants planned to expand gambling gradually while maintaining control over its operation and were looking for the proper vehicle in which to vest that control. The government, through So-Cal, provided that vehicle. Once the government" }, { "docid": "14206970", "title": "", "text": "When the government's conduct during an investigation is sufficiently outrageous, the courts will not allow the government to prosecute offenses developed through that conduct. A defendant may challenge such conduct by means of the outrageous conduct defense, which is predicated on the Due Process Clause of the Fifth Amendment to the United States Constitution. The defense of outrageous conduct is distinct from the defense of entrapment in that the entrapment defense looks to the state of mind of the defendant to determine whether he was predisposed to commit the crime for which he is prosecuted. See Jacobson v. United States, — U.S. -, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 147 (1992). The outrageous conduct defense, in contrast, looks at the government’s behavior. See United States v. Gamble, 737 F.2d 853, 858 (10th Cir.1984). The outrageous conduct defense was first enunciated in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973): “[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction _” Id. at 431-32, 93 S.Ct. at 1643 (citing Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952)). Several years later, in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), a majority of Justices left open the possibility that an outrageous conduct defense based on the Due Process Clause might be invoked successfully even if the entrapment defense is unavailable because of predisposition. Id. at 495, 96 S.Ct. at 1653 (Powell, J., with Blackmun, J., concurring); id. at 496-97, 96 S.Ct. at 1653 (Brennan, J., with Stewart & Marshall, JJ., dissenting). Notwithstanding the lack of a clear holding on outrageous conduct by the Supreme Court, most of the circuits, including this one, have recognized the viability of the outrageous conduct defense. See, e.g., United States v. Jacobson, 916 F.2d 467, 469 (8th Cir.1990) (en banc), rev’d on other grounds, — U.S. -, 112 S.Ct. 1535, 118 L.Ed.2d 147" }, { "docid": "7047529", "title": "", "text": "because of governmental misconduct. Justice Rehnquist wrote, “The remedy of the criminal defendant with respect to the acts of Government .agents ... lies solely in the defense of entrapment.” Id. at 490, 96 S.Ct. at 1650. The due process defense survives, however, because a majority of the Justices, two who concurred in the result of the case and three who dissented, rejected the position “that the concept of fundamental fairness inherent in the guarantee of due process would never prevent the conviction of a predisposed defendant, regardless of the outrageousness of police behavior in light of the surrounding circumstances.” Id. at 492, 96 S.Ct. at 1651 (Powell, J., concurring). See also id. at 497, 96 S.Ct. at 1653 (Brennan, J., dissenting). Justice Powell added, “I emphasize that the cases, if any, in which proof of predisposition is not dispositive will be rare. Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.” Id. at 495 n. 7, 96 S.Ct. at 1653 n. 7. The defense that the government’s conduct was so outrageous as to require reversal on due process grounds is often raised but is almost never successful. No Supreme Court case and only two circuit court opinions have set aside convictions on that basis. In United States v. Twigg, 588 F.2d 373 (3d Cir.1978), a Drug Enforcement Agency (DEA) informant, as part of a plea bargain, involved defendant Neville in establishing a laboratory for the production of a controlled substance, methamphetamine hydrochloride (speed). The government gratuitously supplied about twenty percent of the glassware and an indispensable ingredient, phenyl-2-propanone. The DEA made arrangements with chemical supply houses to facilitate the purchase of the rest of the materials, and the DEA informant, operating under a business name supplied by the DEA, purchased all of the equipment and chemicals with the exception of a separatory funnel. When the participants encountered problems in locating an adequate production site, the government solved the problem by providing an isolated farmhouse. The DEA informant provided the expertise to run the laboratory. Neither Twigg nor Neville knew how to" }, { "docid": "12160961", "title": "", "text": "question of predisposition of a defendant to commit the offense in question, governmental participation may be so outrageous or fundamentally unfair as to • deprive the defendant of due process of law or to move the courts in the exercise of their supervisory jurisdiction over the administration of criminal justice to hold that the defendant was “entrapped” as a matter of law. ... A claim of entrapment on the basis of outrageous government involvement does not present any question for the jury to decide but solely a question of law for the court. . As noted in United States v. Reifsteck, 535 F.2d 1030, 1034-35 & n.4 (8th Cir. 1976): A plurality of the Court [in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976)], by Mr. Justice Rehnquist [joined by Chief Justice Burger and Mr. Justice White], did express the view that outrageous police conduct could never bar a conviction on entrapment grounds, assuming the defendant was predisposed to commit the crime. However, five justices agreed that a court, in its supervisory capacity or under due process principles, could conceivably bar a conviction of a predisposed defendant because of outrageous police conduct.* * The dissenting opinion of Mr. Justice Brennan with whom Mr. Justice Stewart and Mr. Justice Marshall concurred, expresses this view. [Id. at 495-500, 96 S.Ct. at 1652-55.] The concurring opinion of Mr. Justice Powell, with whom Mr. Justice Blackmun joined, also expresses this view. [Id. at 491-95, 96 S.Ct. at 1650-53.] . This phrase is based upon the following sentence in Mr. Justice Powell’s concurring opinion in Hampton v. United States, supra, 425 U.S. at 495 n.7, 96 S.Ct. at 1653 n.7: “Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.” See also United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973) (“While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial" }, { "docid": "5461224", "title": "", "text": "Eastern business that the undercover agents invented for purposes of the investigation that led to these indictments, and the word “scam,” a slang expression, perhaps derived from “scheme,” meaning a confidence game or swindle. Webster’s New World Dictionary 1270 (2d college ed. 1978). . The Speech or Debate Clause provides that “for any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place.” . At oral argument counsel for appellant expressed a preference for additional time to brief and argue this appeal, but acknowledged that he was prepared to argue the merits and, having submitted a full brief to the District Court, could file additional papers in this Court within a week. . The Fourth Circuit has ruled that portions of an indictment, though not in terms alleging conduct protected by the Speech or Debate Clause, may be shown to refer to protected conduct when assessed in light of evidence at trial. United States v. Dowdy, 479 F.2d 213, 223-24 (4th Cir.), cert. denied, 414 U.S. 823, 94 S.Ct. 124, 38 L.Ed.2d 56 (1973). this stage of this case, our review is limited to the face of the indictment. . The Disorderly Behavior Clause provides that “Each house may . punish its Members for disorderly Behaviour.” . At the July 11 hearing before Judge Mishler, Congressman Myers, joining with defendants indicted in other Abscam cases, also contended that the indictment should be dismissed because the tactics used by the Government during its involvement in the criminal activity reached that “demonstrable level of outrageousness” that violates the Due Process Clause. Hampton v. United States, 425 U.S. 484, 495 n.7, 96 S.Ct. 1646, 1653 n.7, 48 L.Ed.2d 113 (1976) (Powell, J., concurring). In Hampton a three-member plurality acknowledged the possibility of a due process defense based on outrageous law enforcement conduct, but appeared to indicate that, as with the entrapment defense, the defendant’s predisposition to commit the crime would make the due process defense unavailable. Id. at 490-91, 96 S.Ct. at 1650-1651. However, five members of the Court indicated that a due process defense," }, { "docid": "23201061", "title": "", "text": "in developing the cases against them exceed an outer limit of fairness mandated by the Due Process Clause. This argument is to be distinguished from the basic defense of entrapment. That defense, as recognized in the federal courts, focuses on the state of mind of the defendant and precludes conviction only when government agents by their inducements prevail upon a person who was not predisposed to commit the type of crime charged. Though it has been insistently urged that the entrapment defense should focus exclusively on the conduct of the agents and preclude a conviction whenever their conduct could be expected to induce an average person to commit the crime, see, e.g., Sherman v. United States, supra, 356 U.S. at 378-85, 78 S.Ct. at 823-27 (Frankfurter, J., concurring); Sorrells v. United States, supra, 287 U.S. at 453-59, 53 S.Ct. at 216-19 (Roberts, J., concurring), a majority of the Supreme Court has never accepted this objective test. However, in recent years, the minority of those on the Supreme Court favoring an objective test has been somewhat encouraged by the suggestion, subscribed to by five members of the Court in Hampton v. United States, 425 U.S. 484, 491-95, 96 S.Ct. 1646, 1650-53, 48 L.Ed.2d 113 (1976) (Powell, J., concurring, joined by Blackmun, J.); id. at 495-500, 96 S.Ct. at 1652-55 (Brennan, J., dissenting, joined by Stewart and Marshall, JJ.), that extreme cases may arise where the government conduct was so outrageous as to violate due process, even though the evidence permitted the jury to find that the defendant was predisposed. Since the Supreme Court has never applied the Due Process Clause to invalidate a conviction based on “outrageous” governmental inducement, we do not know what sort of circumstances the Court believes would meet this elusive standard. In assessing whether the circumstances of a given case present such extreme facts, care must be taken, as the Third Circuit has observed in an Abscam case, “not to undermine the Court’s consistent rejection of the objective test of entrapment by permitting it to reemerge cloaked as a due process defense.” United States v. Jannotti, 673" }, { "docid": "2785582", "title": "", "text": "U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). In that case the defendant was convicted of distributing heroin which had been supplied by a government informant and sold to an undercover agent. The plurality opinion, written by Justice Rehnquist, stated that the remedy of the criminal defendant with respect to the acts of government agents lies solely in the defense of entrapment, and a defendant’s predisposition to commit the crime should operate as a bar to that defense. Id. at 490, 96 S.Ct. at 1650. Justice Powell, joined by Justice Blackmun, concurred in the result but was “unwilling to join the plurality in concluding that, no matter what the circumstances, neither due process principles nor our supervisory power could support a bar to conviction in any case where the government is able to prove predisposition.” Id. at 495, 96 S.Ct. at 1652. Justice Powell emphasized that cases where the due process defense will be successful are rare. “Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.” Id. at 495 n. 7, 96 S.Ct. at 1653 n. 7. The Supreme Court’s analysis in Russell and Hampton has left unclear the types of government conduct considered to be outrageous. The majority of lower court decisions apply a totality of the circumstances approach to assess the fairness of the government’s involvement in crime-related activity. See United States v. Tobias, 662 F.2d 381 (5th Cir.1981), cert. denied, 457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982); United States v. Leja, 563 F.2d 244 (6th Cir.1977), cert. denied, 434 U.S. 1074, 98 S.Ct. 1263, 55 L.Ed.2d 780 (1978); United States v. Twigg, 588 F.2d 373 (3d Cir.1978). A thorough survey of these cases indicates that courts have rarely characterized the government’s conduct as outrageous. Appellant contends that the involvement of the DEA in placing the advertisement, sending the catalogue, providing assistance and technical knowledge, suggesting the popular “kit,” and personally delivering the kit to his home constitutes conduct so outrageous as to violate the due process clause of the fifth amendment. “Although a totality" }, { "docid": "23201062", "title": "", "text": "encouraged by the suggestion, subscribed to by five members of the Court in Hampton v. United States, 425 U.S. 484, 491-95, 96 S.Ct. 1646, 1650-53, 48 L.Ed.2d 113 (1976) (Powell, J., concurring, joined by Blackmun, J.); id. at 495-500, 96 S.Ct. at 1652-55 (Brennan, J., dissenting, joined by Stewart and Marshall, JJ.), that extreme cases may arise where the government conduct was so outrageous as to violate due process, even though the evidence permitted the jury to find that the defendant was predisposed. Since the Supreme Court has never applied the Due Process Clause to invalidate a conviction based on “outrageous” governmental inducement, we do not know what sort of circumstances the Court believes would meet this elusive standard. In assessing whether the circumstances of a given case present such extreme facts, care must be taken, as the Third Circuit has observed in an Abscam case, “not to undermine the Court’s consistent rejection of the objective test of entrapment by permitting it to reemerge cloaked as a due process defense.” United States v. Jannotti, 673 F.2d 578, 608 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). We have previously declined to hold that the Abscam operation violated the Due Process Clause, Myers II, supra, 692 F.2d at 836-47; United States v. Alexandro, 675 F.2d 34, 39-42 (2d Cir.), cert. denied, - U.S. -, 103 S.Ct. 78, 74 L.Ed.2d 75 (1982), and we see no basis for concluding that the activities of the government opera tives directed against the defendants in this case exceeded the constitutional limits of fairness. Appellants point most insistently to the “coaching” activities of Weinberg, which we have recounted. It is understandable that agents who have heard a suspect make incriminating statements or been told by others that he has made them will be anxious to provide an opportunity for the suspect to repeat these statements under circumstances where they can be surreptitiously, though lawfully, recorded. Appellants maintain, however, that Weinberg went further and endeavored to put words in the Senator’s mouth. However these “coaching” tactics might square with" }, { "docid": "2410981", "title": "", "text": "1637, 36 L.Ed.2d 366 (1973). In Russell, the Court held that the defense of entrapment was foreclosed to one who was predisposed to commit a crime, irrespective of the type and degree of government activity involved. Id. at 433, 93 S.Ct. at 1643. The Court did, however, hold out the possibility that due process principles might prohibit an excessive degree of government involvement, stating: [W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R.2d 1396 (1952) Id. at 431-32, 93 S.Ct. at 1642-43. In the Court’s only other consideration of the issue, Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1975) (plurality opinion), the concurring and dissenting justices left open the possibility of a due process challenge under Russell. Id. at 495, 96 S.Ct. at 1652-53 (Powell and Blackmun, JJ., concurring); Id. at 497, 96 S.Ct. at 1653 (Brennan, Stewart, and Marshall, JJ., dissenting). The Court made clear, however, that before the defense recognized in Russell can be invoked to bar a conviction, the defendant must be able to show that the challenged government conduct violates “that ‘fundamental fairness, shocking to the universal sense of justice,’ mandated by the Due Process Clause of the Fifth Amendment.” 411 U.S. at 432, 93 S.Ct. at 1643 (citations omitted). In Hampton, Mr. Justice Powell noted that “Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.” 425 U.S. at 495, n. 7, 96 S.Ct. at 1653, n. 7. In this regard this court has stated that the Russell defense “would rarely, if ever, be available.” United States v. Leja, 563 F.2d 244, 246, n. 4 (6th Cir. 1977), cert. denied, 434 U.S. 1074, 98 S.Ct. 1263, 55 L.Ed.2d 780 (1978). Although the Russell defense has been considered only twice in the Supreme Court, it has been raised many" } ]

[ { "docid": "7854572", "title": "", "text": "the victim whole, restitution ... is imposed as a part of sentencing and remains inherently a criminal penalty.”); United States v. Palma, 760 F.2d 475, 478-79 (3d Cir.1985) (finding that restitution imposed under the VWPA is a criminal penalty, and distinguishing its imposition under the VWPA from a civil proceeding in which restitution is imposed). We have also noted that while criminal restitution resembles a civil remedy and has compensatory as well as punitive aspects, neither these resemblances to civil judgments, nor the compensatory purposes of criminal restitution, detract from its status as a form of criminal penalty when imposed as an integral part of sentencing. See United States v. Woods, 986 F.2d 669, 680-81 (3d Cir.1993); United States v. Kress, 944 F.2d 155, 157-59 (3d Cir.1991); United States v. Pollak, 844 F.2d 145, 152-53 (3d Cir.1988); see also United States v. Carrara, 49 F.3d 105, 108 (3d Cir.1995) (discussing the historical character and purposes of restitution in criminal law); Government of Virgin Islands v. Davis, 43 F.3d 41, 47 (3d Cir.1994) (describing the compensatory purposes of restitution under the VWPA). Based on the foregoing, we find that under the MVRA, restitution is punishment, and that the retrospective application of that punishment to Edwards under the facts of this case is a violation of the Ex Post Facto Clause and plain error. Accordingly, we will reverse the imposition of mandatory restitution and remand for the District Court to make the appropriate factual findings and determination of restitution under the VWPA for Edwards. . Appellant did not specifically argue that the VWPA, not the MVRA applied, but did contend that the District Court should have made findings regarding his financial ability to pay before ordering restitution. This finding is necessary only for cases under the VWPA. 18 U.S.C. §§ 3663, 3664. . At sentencing, the Assistant United States Attorney indicated to the District Court that Edwards' offenses required mandatory restitution. No ■ issue of an ex post facto prohibition was raised by counsel or the court. A. at 22. Recently, the Justice Department has apparently adopted a policy that the MVRA" } ]

[ { "docid": "11699829", "title": "", "text": "offenses of conviction implicated in this motion would fall under the VWPA, which makes restitution discretionary, rather than the mandatory MVRA restitution statute. It would be an abuse of discretion for a district court to simply ignore the potential for restitution without considering whether there are potential victims and whether the court should exercise its discretion to order restitution where the offenses of conviction are within the VWPA. See supra nn. 41-43 and accompanying text. If there are CVRA “crime victims” here, they would be entitled to be at least considered for a discretionary order of restitution in the full amount of each “victim’s” losses under the VWPA. In this analysis, all co-conspirators found guilty of the offense are criminally liable to all “victims” for restitution. The VWPA permits this award to be joint and several, or imposed in different amounts on different defendants. Those factual issues must be determined in consideration of each defendant’s current and future ability to pay. See supra Sec. I.D. Also, whether restitution is awarded under the VWPA or the MVRA, the court must determine the payment schedule under the statutory formula set forth in 18 U.S.C. § 3664(f)(2). See supra Sec. I.D. The majority of the federal circuits, including the Third Circuit, has ruled that restitution, when ordered in connection with a criminal conviction, is a criminal, rather than a civil, penalty. Leahy, 438 F.3d at 333-35. Our Court of Appeals, in a divided en banc decision in Leahy, has also joined the majority of federal circuits in holding that a restitution order under the VWPA or the MVRA does not violate a defendant’s Sixth Amendment right to trial by jury as articulated in Supreme Court precedent beginning with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and culminating in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Id. at 335-39. Leahy was actually three criminal appeals that were combined for en banc determination of whether district courts’ orders of forfeiture and restitution violated the Sixth Amendment right to trial by jury." }, { "docid": "16406423", "title": "", "text": "for imposing this special condition of supervised release. However, it adopted the portion of the presentence report that had recommended the special condition as required by U.S.S.G. § 5E1.1(a)(2). . Ms. Pree additionally requests that we order the district court not to impose a term of supervised release that exceeds July 21, 2005, which is the date Ms. Pree would have completed her supervised release had her case not been stayed pending Booker. . See also United States v. Rand, 403 F.3d 489, 495 n. 3 (7th Cir.2005) (noting that, because restitution is civil in nature, and not criminal punishment, restitution orders are not governed by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or United States v. Booker, - U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)); accord United States v. Garcia-Castillo, 127 Fed.Appx. 385, 390-91 (10th Cir.2005) (unpublished) (determining that Booker did not apply because restitution is not a criminal punishment and concluding that United States v. Wooten, 377 F.3d 1134, 1144-45 & n. 1 (10th Cir.2004), in which another panel of that court stated that courts commonly regard restitution as a criminal penalty but rejected challenge based on Apprendi and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because the restitution ordered did not exceed the value of the damaged property — the maximum allowed by statute — was not controlling because earlier circuit precedent clearly held that restitution is a criminal punishment). Other courts of appeals also have held that Apprendi does not apply to orders of restitution. See United States v. Ross, 279 F.3d 600, 609-10 (8th Cir.2002) (stating that restitution constitutes a criminal penalty and deciding that, even if Apprendi does apply to restitution orders, the amount of restitution ordered was valid because it fell under any statutory maximum); United States v. Syme, 276 F.3d 131, 159 (3d Cir.2002) (holding, under the plain error standard of review, that although restitution ordered under 18 U.S.C. § 3663 is a criminal penalty, the Apprendi rule did not apply because the statute does not prescribe" }, { "docid": "11302356", "title": "", "text": "Southern Union, every circuit to consider whether Apprendi applies to restitution held that it did not. See United States v. Milkiewicz, 470 F.3d 390, 403 (1st Cir.2006) (“[L]ike all of the other circuits to consider this question, we conclude that [Apprendi does] not bar judges from finding the facts necessary to impose a restitution order.”). Day argues that we should break ranks with these prior decisions in light of Southern Union and apply Apprendi to restitution because it is “similar” to a criminal fine. We decline to take Day’s suggested course. As an initial matter, we note that Southern Union does not discuss restitution, let alone hold that Apprendi should apply to it. Instead, far from demanding a change in tack, the logic of Southern Union actually reinforces the correctness of the uniform rule adopted in the federal courts to date. That is, Southern Union makes clear that Apprendi requires a jury determination regarding any fact that “increases the penalty for a crime beyond the prescribed statutory maximum.” 132 S.Ct. at 2350 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348). Thus, in Southern Union itself, the Apprendi issue was triggered by the fact that the district court imposed a fine in excess of the statutory maximum that applied in that case. Id. at 2349. Critically, however, there is no prescribed statutory maximum in the restitution context; the amount of restitution that a court may order is instead indeterminate and varies based on the amount of damage and injury caused by the offense. See 18 U.S.C. §§ 3663(b), 3663A(b). As a consequence, the rule of Apprendi is simply not implicated to begin with by a trial court’s entry of restitution. As the Sixth Circuit aptly explained in United States v. Sosebee, “restitution is not subject to [Apprendi] because the statutes authorizing restitution, unlike ordinary penalty statutes, do not provide a determinate statutory maximum.” 419 F.3d 451, 454 (6th Cir.), cert. denied, 546 U.S. 1082, 126 S.Ct. 843, 163 L.Ed.2d 718 (2005). That logic was sound when written before Southern Union, and it remains so today. C. Finally, Day argues that" }, { "docid": "17081219", "title": "", "text": "was not credible); (3) and the district court failed to consider Wolfe’s interpretation of the record. We decline to disturb the district court’s credibility determinations in this matter. See United States v. Smith, 576 F.3d 681, 687 (7th Cir.2009) (“[W]e do not ‘second-guess the trial judge’s credibility determinations.’ ” (quoting United States v. French, 291 F.3d 945, 951 (7th Cir.2002))). Furthermore, it did not matter how many trucks Wolfe personally loaded. Section lB1.3(a)(l)(B) provides that a defendant is accountable for others’ conduct that is in furtherance of the criminal activity and reasonably foreseeable. See United States v. Sheneman, 682 F.3d 623, 631 (7th Cir.2012). And regardless of how much copper was stolen in December 2009, the district court determined Wolfe was a knowing participant from the outset. The evidence was sufficient to support a conclusion that $2,947,348 of copper (391.941 metric tons) was stolen during the entire copper theft scheme and Wolfe was a knowing participant from the beginning. The losses were reasonably foreseeable to Wolfe, and the district court acted reasonably when it accepted the PSR’s victim loss calculation. C. Restitution The district court imposed a restitution order totaling $3,028,011.29. Wolfe challenges this amount on the ground that it was not supported by the jury’s factual findings, a violation of the Sixth Amendment under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Specifically, he contends that the recent Supreme Court decision in Southern Union Co. v. United States, — U.S. —, 132 S.Ct. 2344, 183 L.Ed.2d 318 (2012), first, requires us to overturn our long-standing jurisprudence that restitution is not a criminal penalty, and second, mandates that all restitution amounts be supported by the jury’s verdict. A discussion of the rule of Apprendi and the Southern Union decision is necessary to give context to Wolfe’s claims. Apprendi stands for the proposition that, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct." }, { "docid": "22105605", "title": "", "text": "a ‘prescribed’ maximum.” (other internal quotation marks omitted)); United States v. Vera, 278 F.3d 672, 673 (7th Cir.) (“[r]estitution, an[ ] openended component of both criminal and civil judgments, is not affected by Appren-di because there is no ‘statutory maximum’ ” (citing United States v. Behrman, 235 F.3d 1049, 1054 (7th Cir.2000) (holding that restitution is not affected by Appren-di on the additional ground that the Seventh Circuit views restitution as essentially a civil remedy rather than a criminal penalty))), cert. denied, 536 U.S. 911, 122 S.Ct. 2372, 153 L.Ed.2d 191 (2002); United States v. Syme, 276 F.3d 131, 159 (3d Cir.) (“[T]he appropriate place to look for the statutory maximum as that term applies in the Apprendi context, is the restitution statute itself. But section 3663 does not specify a maximum amount of restitution that a court may order. The statute provides guidelines that a sentencing judge may use to determine the amount of restitution, but does not prescribe a maximum amount. The Apprendi rule therefore does not apply to restitution orders made pursuant to 18 U.S.C. § 3663, because Ap-prendi applies only to criminal penalties that increase a defendant’s sentence ‘beyond the prescribed statutory maximum.’ ” (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348)), cert. denied, 537 U.S. 1050, 123 S.Ct. 619, 154 L.Ed.2d 525 (2002). In sum, Booker saw no Sixth Amendment requirement that the indictment allege and that the jury find beyond a reasonable doubt such facts as “the number of victims” of the defendant’s offense or the amount of “loss” in a securities fraud case, or that those facts be admitted by the defendant, in order for those facts to be used by the court in fashioning punishment. And as one of the “perfectly valid” provisions of the SRA the Booker Court cited the requirement that the district court consider the need for restitution — a remedy that manifestly requires findings as to the number and identities of victims and the amount of loss, which are frequently unavailable at the time of trial, are collected by a probation officer after the defendant’s conviction, and" }, { "docid": "17081220", "title": "", "text": "the PSR’s victim loss calculation. C. Restitution The district court imposed a restitution order totaling $3,028,011.29. Wolfe challenges this amount on the ground that it was not supported by the jury’s factual findings, a violation of the Sixth Amendment under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Specifically, he contends that the recent Supreme Court decision in Southern Union Co. v. United States, — U.S. —, 132 S.Ct. 2344, 183 L.Ed.2d 318 (2012), first, requires us to overturn our long-standing jurisprudence that restitution is not a criminal penalty, and second, mandates that all restitution amounts be supported by the jury’s verdict. A discussion of the rule of Apprendi and the Southern Union decision is necessary to give context to Wolfe’s claims. Apprendi stands for the proposition that, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. “Statutory maximum” has been defined as “the maximum sentence a judge can impose without additional jury findings.” United States v. Seymour, 519 F.3d 700, 709 (7th Cir.2008) (citing Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)). Other sentencing facts can be found by the district court using a preponderance of the evidence standard. United States v. Krieger, 628 F.3d 857, 863 (7th Cir.2010). The recent trend, in order to circumvent later constitutional concerns, has been to submit more facts to the jury. See United States v. Booker, 543 U.S. 220, 277-78, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (Stevens, J., dissenting) (“In many cases, prosecutors could avoid an [Apprendi ] problem simply by alleging in the indictment the facts necessary to reach the chosen Guidelines sentence.”). The Supreme Court continued this trend in Southern Union. A jury convicted Southern Union, a natural gas distributor, on one count of violating the Resource Conservation and Recovery Act of 1976, which allowed for the imposition of a fine not more than" }, { "docid": "23594958", "title": "", "text": "3 incident. See, e.g., Troutman, 814 F.2d at 1439-40 (finding the district court properly denied a motion to disqualify where the attorney’s testimony was not vital to the defense because the evidence could be obtained through other witnesses); see also, e.g., United States v. Watson, 952 F.2d 982, 986-87 (8th Cir.1991) (stating a defendant seeking to call a prosecutor as a witness must demonstrate the prosecutor’s testimony is vital to the case and that the defendant will be unable to present the same or similar facts from another source). C. Restitution Order The district court imposed a restitution order in the amount of $17,751.58 based on the probation officer’s pre-sentence report. Mr. Wooten contends this order violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The court reviews the legality of the restitution order de novo. United States v. Osborne, 332 F.3d 1307, 1314 (10th Cir.2003); United States v. Monts, 311 F.3d 993, 1001 (10th Cir.2002), cert. denied, 538 U.S. 938, 123 S.Ct. 1605, 155 L.Ed.2d 342 (2003). In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). The district court in this case ordered restitution pursuant to the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A (“MVRA”). The MVRA requires the district court to impose restitution in “an amount equal to — (i) the greater of— (I) the value of the property on the date of the damage, loss, or destruction; or (II) the value of the property on the date of sentencing, less (ii) the value ... of any part of the property that is returned.” Id. § 3663A(b)(l)(B); see also id. § 3664(f)(1)(A) (requiring the district court to order restitution “in the full amount of each victim’s losses as determined by the court”). In this case, the district court ordered restitution in the amount of $17,751.58. This accounted for: $14,705.41 to" }, { "docid": "22975325", "title": "", "text": "the correct sentencing level (level 19, which calls for a sentence of 30-37 months) overlaps with the range of sentences under the erroneous sentencing level (level 21, which yields a sentence of 37-46 months). However, in United States v. Knight, 266 F.3d 203 (3d Cir.2001), we held that under plain error review, “an error in application of the Guidelines that results in use of a higher sentencing range should be presumed to affect the defendant’s substantial rights.” Id. at 207. As does this case, Knight addressed the situation where the erroneous sentencing range overlapped with the correct sentencing range. The government has failed to rebut this presumption of prejudice. We conclude that this error too “seriously affects the fairness, integrity, or public reputation of judicial proceedings” to be left uncorrected. United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks and alternation omitted). Therefore, we will vacate Syme’s sentence and remand to the District Court with instructions to sentence Syme without applying the “sophisticated means” enhancement. V. Did the Restitution Order Violate Apprendi? The District Court ordered Syme to pay $100,000 in restitution to the HCFA (a $300,000 restitution order less a $200,000 credit) pursuant to the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663. Syme contends that the restitution order violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Syme failed to raise this objection in the District Court, and therefore we review for plain error. See Fed.R.Crim.P. 52(b); see also supra note 4. The operative rule from Apprendi is as follows: “Other than the fact of prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. We consider restitution orders made pursuant to criminal convictions to be criminal penalties. United States v. Edwards, 162 F.3d 87, 91 (3d Cir.1998) (holding that restitution ordered under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, constitutes punishment for" }, { "docid": "16016413", "title": "", "text": "this argument has no support in law. We therefore reject it. King was ordered to pay restitution under the Victim and Witness Protection Act, 18 U.S.C. § 3663. The Act requires courts to consider a defendant’s financial resources, including needs and earning ability, before imposing restitution. 18 U.S.C. § 3663(a)(l)(B)(i)(II). However, courts have broad discretion regarding the type and extent of evidence they will consider in making this determination. United States v. Ramilo, 986 F.2d 333, 335 (9th Cir.1993). Ability to pay is only one factor involved in setting the amount of restitution. Id. Ultimately, the standard is a fairly lenient one: “[A]t the time restitution is ordered the record must reflect some evidence the defendant may be able to pay restitution in the amount ordered in the future.” Id. at 336; see also ”United States v. Jackson, 982 F.2d 1279, 1284 (9th Cir.1992) (“[T]he Ninth Circuit does not require that the defendant be able to pay in order to justify a restitution award.”). The evidence before the district court established that King has some college education and a background in accounting, as well as extensive business experience, which should allow him to obtain gainful employment upon his release from prison. Furthermore, the court took into account his relative ability to pay in deciding not to impose a fine in addition to the restitution amount. Accordingly, the record supports the amount of restitution as established by the district court, and we affirm that portion of the sentence. 8. Apprendi Claims After oral argument in this case, King filed a supplemental brief contending the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by imposing a sentence beyond the statutory maximum for mail fraud without proof beyond a reasonable doubt of the facts relied on to justify the increased sentence. See id. at 2362-63 (“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.”). Because we are already vacating" }, { "docid": "22975326", "title": "", "text": "Did the Restitution Order Violate Apprendi? The District Court ordered Syme to pay $100,000 in restitution to the HCFA (a $300,000 restitution order less a $200,000 credit) pursuant to the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663. Syme contends that the restitution order violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Syme failed to raise this objection in the District Court, and therefore we review for plain error. See Fed.R.Crim.P. 52(b); see also supra note 4. The operative rule from Apprendi is as follows: “Other than the fact of prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. We consider restitution orders made pursuant to criminal convictions to be criminal penalties. United States v. Edwards, 162 F.3d 87, 91 (3d Cir.1998) (holding that restitution ordered under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, constitutes punishment for the purpose of Ex Post Facto Clause analysis); United States v. Sleight, 808 F.2d 1012, 1020 (3d Cir.1987) (finding that under the Federal Probation Act, restitution “remains inherently a criminal penalty”); United States v. Palma, 760 F.2d 475, 479 (3d Cir.1985) (holding that a restitution ordered under the VWPA is a criminal penalty). We therefore hold that restitution ordered under 18 U.S.C. § 3663 constitutes “the penalty for a crime” within the meaning of Apprendi. The jury in this case was not charged with finding the amount of restitution owed to the HCFA. Therefore, the question is whether the District Court’s restitution order increased beyond the statutory maximum the penalties that Syme faced. If so, the order violated Apprendi. Section 3663(a)(1)(A) of the VWPA pro-, vides: “The court, when sentencing a defendant convicted of an offense under this title, ... may order, in addition to or, in the case of misdemeanor, in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense.... ” 18 U.S.C. §" }, { "docid": "22975327", "title": "", "text": "the purpose of Ex Post Facto Clause analysis); United States v. Sleight, 808 F.2d 1012, 1020 (3d Cir.1987) (finding that under the Federal Probation Act, restitution “remains inherently a criminal penalty”); United States v. Palma, 760 F.2d 475, 479 (3d Cir.1985) (holding that a restitution ordered under the VWPA is a criminal penalty). We therefore hold that restitution ordered under 18 U.S.C. § 3663 constitutes “the penalty for a crime” within the meaning of Apprendi. The jury in this case was not charged with finding the amount of restitution owed to the HCFA. Therefore, the question is whether the District Court’s restitution order increased beyond the statutory maximum the penalties that Syme faced. If so, the order violated Apprendi. Section 3663(a)(1)(A) of the VWPA pro-, vides: “The court, when sentencing a defendant convicted of an offense under this title, ... may order, in addition to or, in the case of misdemeanor, in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense.... ” 18 U.S.C. § 3663(a)(1)(A) (emphasis added). The highlighted language specifically indicates that restitution orders are penalties that a district court may impose when sentencing a defendant for any offense under title 18. Restitution orders have long been treated as part of the sentence for the offense of conviction, and not, as Syme appears to contend, separate enhancements to the underlying offense. See, e.g., Sleight, 808 F.2d at 1020 (holding that “restitution ... is imposed as a part of sentencing”); Palma, 760 F.2d at 479 (noting that the legislative history of the VWPA “amply demonstrates that Congress intended restitution to be an integral part of the sentencing process”). Therefore, because the language of section 3663 specifically applies that section to all offenses defined in title 18, and because it has been the traditional practice of district courts to include restitution as part of the sentence for the offense of conviction, we think that the appropriate place to look for the statutory maximum as that term applies in the Apprendi context, is the restitution statute itself. But section 3663 does" }, { "docid": "23594960", "title": "", "text": "Ms. Por-tee’s insurance company, which is the amount the company paid for her totaled car; $2,796.17 to the insurance company of Andrew Douglas, who was the owner of the truck Mr. Wooten was driving on the night he committed the offenses, which is the amount the insurance company paid for damage to Mr. Douglas’s truck; and $250 to Mr. Douglas to reimburse him for his out-of-pocket deductible for the damage to his truck. On appeal, Mr. Wooten does not contend that any of these amounts exceeded the value of the damage to the crime victims’ property. Accordingly, Apprendi does not apply to the restitution order. See, e.g., United States v. Ross, 279 F.3d 600, 609-10 (8th Cir.2002) (holding Apprendi did not apply to a restitution order because the MVRA does not prescribe a maximum restitution amount and because the order did not exceed the scope of the indictment); United States v. Bearden, 274 F.3d 1031, 1042 (6th Cir.2001) (holding Apprendi did not apply to a restitution order in an amount equal to the value of the stolen property); see also, e.g., United States v. Syme, 276 F.3d 131, 159 (3d Cir.) (holding Apprendi does not apply to restitution orders under the Victim and Witness Protection Act, 18 U.S.C. § 3663 (‘VWPA”), because “[t]he statute ... does not prescribe a maximum amount”), cert. denied, 537 U.S. 1050, 123 S.Ct. 619, 154 L.Ed.2d 525 (2002); United States v. Behrman, 235 F.3d 1049, 1054 (7th Cir.2000) (holding Apprendi does not apply to restitution orders under the VWPA and reasoning the statute is like one “that permits the judge to impose any term of years”). Mr. Wooten cites United States v. Edwards, 162 F.3d 87 (3d Cir.1998), for the proposition that restitution under the MVRA constitutes punishment for purposes of the Ex Post Facto Clause. Id. at 89-92. It is true that courts commonly regard such restitution orders as criminal penalties. See United States v. Cliatt, 338 F.3d 1089, 1094 (9th Cir.2003) (referring to restitution under the MVRA as a criminal penalty); Ross, 279 F.3d at 609 (holding restitution is a criminal penalty for" }, { "docid": "23233663", "title": "", "text": "(11th Cir.2003). As to the exceptional circumstances, we noted that such circumstances are analogous to a showing of cause and prejudice to overcome a procedural default for raising a claim for the first time in a habeas corpus petition. Id. at 1214 n. 2. We conclude from the record here that Dohrmann cannot challenge the sentencing court’s initial restitution calculation because he has failed to demonstrate the exceptional circumstances required in order for this court to hear such an argument in a collateral proceeding. He has not made any showing that is analogous to a showing of cause and prejudice to overcome a procedural default for failing to raise a claim. B. Whether Apprendi applies to restitution orders In Apprendi, the Supreme Court pronounced that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. at 2362-63. We have not directly addressed whether Apprendi applies to restitution orders. However, other circuits addressing this issue have held that Apprendi does not apply, primarily because the restitution statute, 18 U.S.C. § 3663, does not have a prescribed statutory maximum. See United States v. Carruth, 418 F.3d 900, 902-04 (8th Cir.2005) (under the restitution statute there was “no specific or set upper limit for the amount of restitution,” in contrast to criminal statutes which provided maximum terms of imprisonment and fine amounts); United States v. Syme, 276 F.3d 131, 159 (3d Cir.2002) (Apprendi rule does not apply to restitution orders made pursuant to 18 U.S.C. § 3663 because Apprendi applied only to criminal penalties that increase a defendant’s sentence “beyond the prescribed statutory maximum”); United States v. Behrman, 235 F.3d 1049, 1054 (7th Cir.2000) (Apprendi does not apply to restitution orders on the bases that (1) restitution is a civil penalty, not a criminal one and, therefore Apprendi does not apply because it is a rule of criminal procedure; and (2) § 3663 does not prescribe a statutory maximum for restitution); United States" }, { "docid": "22105606", "title": "", "text": "to 18 U.S.C. § 3663, because Ap-prendi applies only to criminal penalties that increase a defendant’s sentence ‘beyond the prescribed statutory maximum.’ ” (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348)), cert. denied, 537 U.S. 1050, 123 S.Ct. 619, 154 L.Ed.2d 525 (2002). In sum, Booker saw no Sixth Amendment requirement that the indictment allege and that the jury find beyond a reasonable doubt such facts as “the number of victims” of the defendant’s offense or the amount of “loss” in a securities fraud case, or that those facts be admitted by the defendant, in order for those facts to be used by the court in fashioning punishment. And as one of the “perfectly valid” provisions of the SRA the Booker Court cited the requirement that the district court consider the need for restitution — a remedy that manifestly requires findings as to the number and identities of victims and the amount of loss, which are frequently unavailable at the time of trial, are collected by a probation officer after the defendant’s conviction, and are not subject to any monetary ceiling. We thus reject the contentions of Laken and Reifler that the orders requiring them to make restitution for loss amounts not admitted in their plea allocutions violated them rights under the Sixth Amendment as enunciated in Booker. We see no Booker error. B. The Challenges to the Application of the MVRA Finally, Laken and Reifler contend that the restitution orders entered against them must be vacated because the orders did not comply with the requirements of the MVRA. We review a district court’s order of restitution generally for abuse of discretion. See, e.g., United States v. Luden, 347 F.3d 45, 52-53 (2d Cir.2003). Where there are challenges to the court’s findings of fact, we review for clear error; insofar as the order rests on interpretations of law, we review those interpretations de novo. See, e.g., id. at 53. 1. The Provisions of the MVRA The MVRA, codified largely at 18 U.S.C. §§ 3663A and 3664, requires the sentencing court, with limited exceptions, to order restitution to the victims" }, { "docid": "14947495", "title": "", "text": "punishment, and any fact that increases punishment beyond a statutory maximum must be found by a jury under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court unconstitutionally enhanced his restitution under the MVRA based on judicial factfinding. He also claims that the Supreme Court’s decision in Southern Union Co. v. United States, — U.S.-, 132 S.Ct. 2344, 183 L.Ed.2d 318 (2012), confirms his position that restitution orders must be based on facts found by a jury. The government rejects Churn’s premise that the MVRA has a statutory maximum and therefore maintains that Apprendi does not apply to the statute. Thus, the government distinguishes Southern Union, which involved a punishment scheme with a statutory maximum fine, from this case. Even assuming that the MVRA has a statutory maximum, the government argues that because the statute also has an exception for criminal conduct involving a scheme, conspiracy, or pattern of criminal activity, and Churn was convicted of “knowingly executing], or attempting] to execute, a scheme or artifice” to defraud a bank, 18 U.S.C. § 1344, the district court correctly ordered restitution based on Churn’s entire scheme, which included conduct underlying the dismissed and acquitted counts. ' “This court reviews a constitutional challenge to a defendant’s sentence de novo wherever the defendant preserves the claim for appellate review.” Copeland, 321 F.3d at 601. Under the MVRA, a district court “shall order” a defendant, to make restitution to “an identifiable victim or victims [who] has suffered a[] pecuniary loss.” 18 U.S.C. § 3663A(a)(l), (c)(1)(B). “Victim” is defined as: [A] person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern. 18 U.S.C. § 3663A(a)(2). The Supreme Court of the United States has held that, other than the existence of a prior conviction, “any fact that increases the penalty" }, { "docid": "22975329", "title": "", "text": "not specify a maximum amount of restitution that a court may order. The statute provides guidelines that a sentencing judge may use to determine the amount of restitution, but does not prescribe a maximum amount. The Apprendi rule therefore does not apply to restitution orders made pursuant to 18 U.S.C. § 3663, because Apprendi applies only to criminal penalties that increase a defendant’s sentence “beyond the prescribed statutory maximum.” 530 U.S. at 490, 120 S.Ct. 2348. VI. Conclusion For the reasons stated above, we will vacate Syme’s False Claims Act conviction on count 25 of the superseding indictment and remand that count for a new trial based only on the “treatment” theory of fraud. We will also vacate the sentence imposed by the District Court and remand for resentencing with instructions not to apply the “sophisticated means” enhancement of § 2Fl.l(b)(5)(c) (1998) of the Sentencing Guidelines. In all other respects, we will affirm the judgment of the District Court. . The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). . Syme contends that the District Court committed plain error by admitting the testimony of two prosecution witnesses. He argues that the District Court should not have admitted the testimony of Joseph Leaser, M.D., a physician who had consulted for Xact and it predecessor company for twenty-four years, and who reviewed the medical records of several patients whom Syme had transported, or Craig Swartz, a Medicare fraud examiner employed by Xact. Syme did not object to Leaser’s or Swartz's testimony in the District Court. Therefore, we review for plain error. See Fed. R. Ev. 103(d); see also infra note 4 (describing the plain error standard of review). He contends that Leaser’s testimony should not have been admitted as expert testimony under Federal Rule of Evidence 702 because it could not \"assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Ev. 702. Leaser reviewed the files of several patients whose ambulance transportation, the government contended, was" }, { "docid": "23594961", "title": "", "text": "the stolen property); see also, e.g., United States v. Syme, 276 F.3d 131, 159 (3d Cir.) (holding Apprendi does not apply to restitution orders under the Victim and Witness Protection Act, 18 U.S.C. § 3663 (‘VWPA”), because “[t]he statute ... does not prescribe a maximum amount”), cert. denied, 537 U.S. 1050, 123 S.Ct. 619, 154 L.Ed.2d 525 (2002); United States v. Behrman, 235 F.3d 1049, 1054 (7th Cir.2000) (holding Apprendi does not apply to restitution orders under the VWPA and reasoning the statute is like one “that permits the judge to impose any term of years”). Mr. Wooten cites United States v. Edwards, 162 F.3d 87 (3d Cir.1998), for the proposition that restitution under the MVRA constitutes punishment for purposes of the Ex Post Facto Clause. Id. at 89-92. It is true that courts commonly regard such restitution orders as criminal penalties. See United States v. Cliatt, 338 F.3d 1089, 1094 (9th Cir.2003) (referring to restitution under the MVRA as a criminal penalty); Ross, 279 F.3d at 609 (holding restitution is a criminal penalty for purposes of Apprendi); Syme, 276 F.3d at 159 (same). But see Behrman, 235 F.3d at 1054 (noting the Seventh Circuit regards restitution as a “classic civil remedy”). The issue here, however, is not whether the restitution order was a criminal penalty for purposes of Apprendi. Even if the court were to conclude that it is a criminal penalty, Mr. Wooten does not contend that the restitution order exceeds the value of the damaged property, and it is for that reason that Apprendi does not apply here. Mr. Wooten also contends the restitution order violated the Equal Protection Clause of the Fifth Amendment because the MVRA allows the court to decline to award restitution when doing so would be impracticable or too complicated, and thus some criminal defendants such as those convicted of complicated financial crimes will not be required to pay restitution while other types of defendants will bear the burden of restitution. Mr. Wooten devotes only one short paragraph to this argument, and the only case he cites in support of this argument is" }, { "docid": "14947496", "title": "", "text": "defraud a bank, 18 U.S.C. § 1344, the district court correctly ordered restitution based on Churn’s entire scheme, which included conduct underlying the dismissed and acquitted counts. ' “This court reviews a constitutional challenge to a defendant’s sentence de novo wherever the defendant preserves the claim for appellate review.” Copeland, 321 F.3d at 601. Under the MVRA, a district court “shall order” a defendant, to make restitution to “an identifiable victim or victims [who] has suffered a[] pecuniary loss.” 18 U.S.C. § 3663A(a)(l), (c)(1)(B). “Victim” is defined as: [A] person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern. 18 U.S.C. § 3663A(a)(2). The Supreme Court of the United States has held that, other than the existence of a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. However, we have noted that “[a]n intra-circuit split exists [in the Sixth Circuit] on the question of whether the MVRA specifies a statutory maximum.” United States v. Winans, 748 F.3d 268, 272 n. 2 (6th Cir.2014). In United States v. Sosebee, this court obseiwed that “we have [ ] held that restitution orders are not affected by the Supreme Court’s ruling in Apprendi v. New Jersey ... because the restitution statutes do not specify a statutory maximum.” 419 F.3d 451, 461 (6th Cir.2005). We also pointed out that the Third, Seventh, Eighth, and Tenth Circuits have held that Apprendi does not apply to restitution orders under the MVRA. Id. Six years later, however, this court stated in United States v. Freeman that “the restitution statute [MVRA] ‘does set a statutory maximum on the amount of restitution.’ ” 640 F.3d 180, 193 (6th Cir.2011) (quoting United States v." }, { "docid": "22975328", "title": "", "text": "3663(a)(1)(A) (emphasis added). The highlighted language specifically indicates that restitution orders are penalties that a district court may impose when sentencing a defendant for any offense under title 18. Restitution orders have long been treated as part of the sentence for the offense of conviction, and not, as Syme appears to contend, separate enhancements to the underlying offense. See, e.g., Sleight, 808 F.2d at 1020 (holding that “restitution ... is imposed as a part of sentencing”); Palma, 760 F.2d at 479 (noting that the legislative history of the VWPA “amply demonstrates that Congress intended restitution to be an integral part of the sentencing process”). Therefore, because the language of section 3663 specifically applies that section to all offenses defined in title 18, and because it has been the traditional practice of district courts to include restitution as part of the sentence for the offense of conviction, we think that the appropriate place to look for the statutory maximum as that term applies in the Apprendi context, is the restitution statute itself. But section 3663 does not specify a maximum amount of restitution that a court may order. The statute provides guidelines that a sentencing judge may use to determine the amount of restitution, but does not prescribe a maximum amount. The Apprendi rule therefore does not apply to restitution orders made pursuant to 18 U.S.C. § 3663, because Apprendi applies only to criminal penalties that increase a defendant’s sentence “beyond the prescribed statutory maximum.” 530 U.S. at 490, 120 S.Ct. 2348. VI. Conclusion For the reasons stated above, we will vacate Syme’s False Claims Act conviction on count 25 of the superseding indictment and remand that count for a new trial based only on the “treatment” theory of fraud. We will also vacate the sentence imposed by the District Court and remand for resentencing with instructions not to apply the “sophisticated means” enhancement of § 2Fl.l(b)(5)(c) (1998) of the Sentencing Guidelines. In all other respects, we will affirm the judgment of the District Court. . The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have appellate" }, { "docid": "20640022", "title": "", "text": "(2005), the Supreme Court found the mandatory Guidelines scheme under which Williams was sentenced unconstitutional. Though Williams was sentenced before Booker, he preserved this issue for appellate review by objecting at the sentencing hearing that the sentences and the order of restitution were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). (R.18-169 at 3-6, 21-22.) The Government concedes that Williams is entitled to de novo review of his sentences, that constitutional error occurred when the district court enhanced Williams’s sentences under the mandatory Guidelines based on the court’s own findings of fact, and that the Government cannot shoulder its burden of demonstrating that the constitutional error was harmless beyond a reasonable doubt. We agree and therefore vacate the sentences and remand for resentencing. Notwithstanding the remand for resentencing, however, the district court need not reconsider the order of restitution. We have recently held that restitution orders do not violate the rule announced in Apprendi (“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”) because the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663, does not have a prescribed statutory maximum. Dohrmann v. United States, 442 F.3d 1279 (11th Cir.2006) (citing Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63). We now extend the reasoning of our precedent and hold that Booker does not apply to restitution orders. We do so because restitution orders are authorized by the MVRA, a statute unaffected by Booker. See United States v. Sosebee, 419 F.3d 451, 462 (6th Cir.2005) (“Although the guidelines mandate imposition of restitution where allowable under the statutes, the restitution statutes function independently from the guidelines and do not rely on the guidelines for their validity. Thus, the Booker Court’s holding that the Sentencing Guidelines are now merely advisory does not affect orders of restitution.”). Additionally, the MVRA does not set an upper limit" } ]

[ { "docid": "11406633", "title": "", "text": "the power to review fee applications independently), In re National Paragon Corp., 87 B.R. 11, 13 (E.D.Pa.1988) (same), In re J.A. & L.C. Brown Co., 75 B.R. 539, 539-40 (E.D.Pa.1987) (same) and In re Patronek, 121 B.R. 728, 729-30 & n. 4 (Bankr.E.D.Pa.1990) (same) with In re Jensen’s Interiors, Inc., 132 B.R. 105, 106 (E.D.Pa.1991) (bankruptcy court lacks the authority to reduce attorneys' fees sua sponte), In re Pendleton, No. 90-1091, 1990 WL 29645, at *1 (E.D.Pa. Mar. 15, 1990) (same), In re T & D Tool, Inc., 132 B.R. 525, 526, 528 n. 1 (E.D.Pa.1991) (same), In re Rheam of Ind., Inc., 142 B.R. 698, 700 (E.D.Pa.1992) (\"Rheam V\") (bankruptcy court's discretion to deny fees is more limited when the application is unopposed) and In re Delaware River Stevedores, Inc., 147 B.R. 864, 868-70 (Bankr.E.D.Pa.1992) (same). Fleet v. United States Consumer Council, No. 89-7527, 1990 WL 18926, at *1 (E.D.Pa. Feb. 23, 1990) appears to have been a statutory fee case, see In re Fleet, 95 B.R. 319, 336-37 (E.D.Pa.1989). . That .section provides in pertinent part: (a) Each United States trustee, within the region for which such United States trustee is appointed, shall— (3) supervise the administration of cases and trustees in cases under chapter 7, 11, or 13 of title 11 by, whenever the United States trustee considers it to be appropriate— (A) monitoring applications for compensation and reimbursement filed under section 330 of title 11 and, whenever the United States trustee deems it to be appropriate, filing with the court comments with respect to any of such applications^] 28 U.S.C.A. § 586(a) (1993). . See, e.g., In re Cascade Oil Co., 126 B.R. 99, 106 (D.Kan.1991); In re NRG Resources, Inc., 64 B.R. 643, 650 (W.D.La.1986); In re Ralph Marcantoni & Sons, 62 B.R. 245, 247 (D.Md.1986); Cohen & Thiros, P.C. v. Keen Enters., Inc., 44 B.R. 570, 574-75 (N.D.Ind.1984); In re Colonial Distrib. Co., 314 F.Supp. 418, 420 (D.S.C.1970) (pre-amendments); In re Maruko, Inc., 160 B.R. 633, 637 (Bankr.S.D.Cal.1993); In re Corporacion de Servicios Medico-Hospitalarios de Fajardo, Inc., 155 B.R. 1, 1 (Bankr.D.P.R.1993); In re" } ]

[ { "docid": "18294011", "title": "", "text": "(Bankr.S.D.N.Y.2006) (citing In re Marvel Entertm’t Group, Inc., 140 F.3d 463, 471 (3d Cir.1998)). Although § 1104 requires a bankruptcy court to appoint a trustee if the requirements of the statute are met, a court has wide discretion in considering the relevant facts. In re Sharon Steel Corp., 871 F.2d at 1226; Adelphia, 336 B.R. at 656 (“The decision to appoint a chapter 11 trustee is a factual determination entrusted to the discretion of the bankruptcy judge.”). A. Section 1104(a)(1) — Appointment of a Chapter 11 Trustee for “Cause” The U.S. Trustee’s principal argument has been that a chapter 11 trustee must be appointed because there is “cause” within the meaning of § 1104(a)(1). The appointment of a chapter 11 trustee is authorized upon the showing of cause— inclusive of fraud, dishonesty, incompetence or gross mismanagement of the debtor’s affairs by current management. 11 U.S.C. § 1104(a)(1). Once the court makes a finding that cause exists under § 1104(a)(1), “there is no discretion; an independent trustee must be appointed.” In re V. Savino Oil & Heating Co., Inc., 99 B.R. 518, 525 (Bankr.E.D.N.Y.1989). Although the court’s finding is limited to a factual determination whether “cause” exists, a court is given wide latitude in determining whether the challenged conduct rises to the level of “cause.” Comm. of Dalkon Shield Claimants v. A.H. Robins Co., Inc., 828 F.2d 239, 241-42 (4th Cir.1987) (noting that the construction of § 1104 “requires that the courts be given discretionary authority to determine whether the conduct rises to the level of ‘cause’ ”). When considering whether to appoint a trustee for cause, a court’s focus is on the debtor’s current management, not the misdeeds of past management. See In re Sletteland, 260 B.R. 657, 672 (Bankr.S.D.N.Y.2001) (“[0]n a motion for the appointment of a trustee, the focus is on the debtor’s current activities, not past misconduct.”) (citing 7 Collier on Bankruptcy ¶ 1104.02[3][e][i] (15th ed.)). In other words, the fact that the debtor’s prior management might have been guilty of fraud, dishonesty, incompetence, or gross mismanagement does not necessarily provide grounds for the appointment of a" }, { "docid": "4636586", "title": "", "text": "firm to represent a parent company and its subsidiaries or represent brother-sister corporations. The mere existence of claims between related entities may not alone warrant disqualification. See In re International Oil Co., 427 F.2d 186 (2d Cir.1970); In re Mulberry Phosphates, Inc., 142 B.R. 997 (Bankr.M.D.Fla.1992). In the instant case, however, the conflicts among the parties are so materially adverse that the dual representation by Rainey and the Heiskell firm cannot be permitted. The entanglement of interests coupled with the attorney fee payment by OCC to the Arnold firm likewise disqualifies that firm. The disqualification of the debtor’s attorneys does not, however, entirely cure the conflict of interest situation. The chief executive officer and shareholder has acted in disregard of the corporate entities to the detriment of the debtor corporation. The claims of and against the alter-egos are numerous and large. It does not appear that it will be sufficient for each person, natural and corporate, to have its own attorney while O’Neal acts for the debtor-in-possession. ORDERED that the Motion to Modify Court Order Dated August 24, 1992, is GRANTED. The following counsel for the debtor are hereby disqualified: Arnold, Grobmyer & Haley; William P. Rainey; and Heiskell, Donelson, Bearman, Adams, Williams, & Kirsch. It is FURTHER ORDERED that the debtor shall forthwith obtain new counsel who shall enter an appearance within thirty (30) days of entry of this Order. IT IS SO ORDERED. . An application to employ tax counsel was also filed and approved. NBC raises no issues with regard to tax counsel. . The debtor-in-possession has the same functions and duties as a trustee. 11 U.S.C. § 1107. . Courts do not have the power to direct the appointment of a trustee, sua sponte. The parties must protect their own interests in this matter. The U.S. Trustee has more than ample support for appointment of a trustee. Section 1104 permits the appointment of a trustee, \"for cause, including fraud, dishonesty, incompetence, or gross mismanagement of the affairs by the debtor by current management either before or after the commencement of the case, or similar cause.” 11" }, { "docid": "4790625", "title": "", "text": "case. The Bankruptcy Code further provides for the duties of an examiner upon appointment. In pertinent part, section 1106 of the Bankruptcy Code provides that “An examiner appointed under section 1104(c) of this title shall perform the duties specified in [11 U.S.C. § 1106(a)(3) and (4) ]....” 11 U.S.C. § 1106(b). Pursuant to this cross-reference section 1106(a)(3) accordingly provides in effect that “except to the extent that the court orders otherwise, [an examiner shall] investigate the acts, conduct, assets, liabilities, and financial condition of the debtor, the operation of the debtor’s business and the desirability of the continuance of such business, and any other matter relevant to the case or to the formulation of a plan.” 11 U.S.C. § 1106(a)(3). The Debtor’s strict interpretation of “examiner” as merely an investigator of fraud and other irregularities is unwarranted. The statutory language, providing that an examiner shall investigate “any other matter relevant to the case or to the formulation of a plan”, is clearly broad enough to encompass the duties for which this court is considering the appointment of an examiner. 11 U.S.C. § 1106(a)(3). A number of courts have expanded the functions of an examiner in chapter 11 proceedings. See, e.g., In re John Peterson Motors, Inc., 47 B.R. 551 (Bankr.D.Minn.1985) (examiner with all the powers and duties of a trustee appointed, in lieu of the appointment of a trustee, to enable debtor to continue as a party in a district court action); In re Carnegie Intern. Corp., 51 B.R. 252 (Bankr.S.D.Ind.1984) (examiner authorized td bring suit on behalf of debtor); In re Boileau, slip op. (Bankr.S.D.Cal. Sept. 2, 1982) (discussed in In re Boileau, 736 F.2d 503 (9th Cir.1984) (examiner with expanded powers appointed by stipulation of the parties to avoid appointment of a trustee). In the UNR Industries and Landscaping Services cases cited below, examiners were appointed specifically to mediate and aid in breaking a deadlock in plan negotiations. The Debtor has voiced a question as to any sua sponte power of this court to appoint an examiner. I believe that issue is not well taken. The court notes" }, { "docid": "7224102", "title": "", "text": "a corporate debtor such as OEC does not have standing to assert violations under § 362(h). In re Material Corp., Inc., 206 B.R. 933 (Bankr.N.D.Ill.1996)(Katz, J.) Moreover, a sanction of $175,000, which is the amount that OEC requests that Landlord’s proof of claim be reduced by, is an amount almost equal to eighteen months Base Rent, and is clearly unwarranted. Where OEC has shown no damages, the facts of this case warrant nothing beyond an admonition. APPOINTMENT OF A TRUSTEE Section 1104 contains a two-pronged test for determination of whether to appoint a trustee. The bankruptcy court must appoint a trustee if cause exist or if it is in the interest of creditors and the estate. 11 U.S.C. § 1104; In re Madison Management Group, Inc., 137 B.R. 275 (Bankr.N.D.Ill.1992). There is an inexhaustive list, contained in § 1104, of what constitutes cause for purposes of appointment of a trustee: fraud, dishonesty, incompetence, or gross management of the affairs of the debtor by current management. Id.; 11 U.S.C. § 1104(a)(1). The determination of cause is solely within the discretion of the court. In re Sharon Steel Corp., 871 F.2d 1217, 1226 (3d Cir.1989). The party requesting the appointment of a trustee, carries the burden of proof and must show that appointment of a trustee is necessary under § 1104(a)(1) or (2). Id. Decisions regarding appointment of a trustee must be made on a case-by-case basis. Id. Generally, as Chapter 11 is designed to give the debtor an opportunity to rehabilitate through reorganization, the bankruptcy court favors the debtor to remain in possession and operate the business. In re Microwave Products of Am., Inc., 102 B.R. 666, 670 (Bankr.W.D.Tenn.). “Very often the creditors will be benefited by continuation of the debtor-in-possession, both because the expense of a trustee will not be required, and the debtor, who is familiar with his business, will be better able to operate it during the reorganization case.” Sharon Steel, 871 F.2d at 1226. “[The] appointment of a trustee should be the exception, rather than the rule.” Id. at 1225; see Madison Management, 137 B.R. at 281(the" }, { "docid": "10275424", "title": "", "text": "42 B.R. 649 (D.Or.1984). The duties of a debtor-in-possession, therefore, include the duty to protect and to conserve property in his possession for the benefit of creditors. In re Devers, 759 F.2d 751 (9th Cir.1985). [5] Furthermore, a debtor-in-possession is a fiduciary of his creditors. In re Van Brunt, 46 B.R. 29 (Bkrtcy.W.D.Wisc.1984); See also, Matter of Royal Bedding Co., 42 B.R. 257 (Bkrtcy.W.D.Pa.1984). Because the debtor-in-possessiori stands in a fiduciary relationship with his creditors, his fiduciary obligation includes refraining from acting in a manner which could damage the estate, or hinder a successful reorganization of the business. In re Thurmond, 41 B.R. 464 (Bkrtcy.D.Or.1983). [See also In re Modern Office Supply, Inc., 28 B.R. 943 (Bankr.W.D.Okla.1983).] [6] Under 11 U.S.C. § 1104(a)(1), a creditor must prove the existence of fraud, dishonesty, incompetence or gross mismanagement of the affairs of the debtor by current management. However, 11 U.S.C. § 1104(a)(2) provides a flexible standard for the appointment of a Trustee. See, In re Deena Packaging Industries, Inc., 29 B.R. 705 (Bkrtcy.S.D.N.Y.1983); In re Hotel Associates, Inc., supra; also, see generally 5 Collier on Bankruptcy 1104.01 (15th Ed.1979) at 1104-17. Under 11 U.S.C. § 1104(a)(2), the Court may utilize its broad equity powers to engage in a cost-benefit analysis in order to determine whether the appointment of a Trustee would be in the interests of creditors, equity security holders, and other interests of the estate. In re Hotel Associates, Inc., supra. Consequently, the analysis becomes one of whether the cost of appointing a Trustee is outweighed by the benefits derived by the appointment. ****** [7] In order to determine the benefits of appointing a Trustee [under subsection (a)(2) ], a close and careful scrutiny of a debtor-in-possession’s prior and present conduct must be made and from that a determination must be made that a Trustee will accomplish the goals of the Chapter 11 Plan more efficiently and effectively. This examination makes critical an assessment of the overall management of the debtor corporation; the experience, skills and competence of the debtor-in-possession both past and present, and the trust and confidence in the" }, { "docid": "18532996", "title": "", "text": "11 trustee appointment as an extraordinary step, the movant is generally required to present clear and convincing evidence of the trustee’s necessity. In re Colorado-Ute Elec. Ass’n, Inc., 120 B.R. 164, 173 (Bankr.D.Colo.1990). The appointment is mandatory under § 1104(a)(1) if a court finds cause, including “fraud, dishonesty, incompetence, or gross mismanagement” by the debtor’s current management. Id. A court also has discretion to order the appointment of a trustee if the court determines that “the appointment is in the interest of creditors.” 11 U.S.C. § 1104(a)(2); In re PMH Corp., 116 B.R. 644, 647 (Bankr.N.D.Ind.1989). A number of factors are variously considered when an appointment for cause is requested. These include the overall management of the debtor, both past and present; the trustworthiness of the debtor’s management; the nature of and availability of financial records; the movement of funds between the debtor and related entities; the ability of management to act as a fiduciary for the estate; and pragmatic considerations such as cost. In re Ionosphere Clubs, Inc., 113 B.R. 164, 168 (Bankr.S.D.N.Y.1990). In this ease, the court finds that cause clearly exists to warrant the appointment of a chapter 11 trustee, and that such an appointment is also in the best interests of all creditors, including the undisputed creditors. This conclusion is based upon the questionable business practices of the debt- or’s current management, Donald H. Al-brecht. Simply put, this motion is about Donald H. Albrecht’s conduct. More specifically, three (3) areas of concern are apparent. First, Mr. Albrecht has demonstrated a disregard for judicial authority, because of which he is absent from Wyoming. The evidence showed a pattern of disregard for court orders, and a failure to appear at required proceedings. For example, during the course of the extensive Wanamaker litigation, Mr. Wanamaker’s counsel attempted to conduct discovery concerning Mr. Albrecht’s assets. The eventual outcome was the issuance of a warrant for Mr. Albrecht’s arrest in California due to his repeated failure to appear for a debtor’s examination. During the Wyoming litigation between Mr. Wanamaker and Mr. Albrecht, Judge Rogers of the Ninth Judicial District Court appointed" }, { "docid": "4790626", "title": "", "text": "appointment of an examiner. 11 U.S.C. § 1106(a)(3). A number of courts have expanded the functions of an examiner in chapter 11 proceedings. See, e.g., In re John Peterson Motors, Inc., 47 B.R. 551 (Bankr.D.Minn.1985) (examiner with all the powers and duties of a trustee appointed, in lieu of the appointment of a trustee, to enable debtor to continue as a party in a district court action); In re Carnegie Intern. Corp., 51 B.R. 252 (Bankr.S.D.Ind.1984) (examiner authorized td bring suit on behalf of debtor); In re Boileau, slip op. (Bankr.S.D.Cal. Sept. 2, 1982) (discussed in In re Boileau, 736 F.2d 503 (9th Cir.1984) (examiner with expanded powers appointed by stipulation of the parties to avoid appointment of a trustee). In the UNR Industries and Landscaping Services cases cited below, examiners were appointed specifically to mediate and aid in breaking a deadlock in plan negotiations. The Debtor has voiced a question as to any sua sponte power of this court to appoint an examiner. I believe that issue is not well taken. The court notes that oral motions for the appointment of an examiner were made at the hearing on oral argument regarding appointment of examiner on March 1, 1989, set forth above. However, assuming for the purposes of argument that no such motions were made, the court nevertheless believes it has the power to sua sponte appoint an examiner. See In re UNR Industries, Inc., 72 B.R. 789 (Bankr.N.D.Ill.1987); In re Landscaping Services, Inc., 39 B.R. 588 (Bankr.E.D.N.C.1984). JUSTIFICATION In this case the record justifies the appointment of an examiner. A showing has been made under section 1104(b)(1) of the Bankruptcy Code that the appointment is in the interests of this estate, and its various constituencies, in that there is need for investigation of matters relevant to the case and to the formulation of a plan. Moreover, the debtor’s qualifying liquidated debts clearly exceed the $5,000,000 threshold figure set forth in section 1104(b)(2) of the Code. The court has terminated exclusivity and there is every indication that there will be multiple plans of reorganization filed in this case. The" }, { "docid": "21961834", "title": "", "text": "of the hearing that the Bankruptcy Court’s decision to appoint the Trustee was plainly well founded, I found the case law unhelpful in explaining the relevant standards. Consequently, I have taken some time to attempt to draft in this opinion a satisfactory basis for my decision to affirm the Bankruptcy Court. III. Discussion A. Section 1104(a) The bankruptcy code empowers a bankruptcy court to appoint a trustee in a Chapter 11 proceeding under certain circumstances. Section 1104 of the Code provides: (a) At any time after the commencement of the case but before confirmation of a plan, on request of a party in interest or the United States trustee, and after notice and a hearing, the court shall order the appointment of a trustee— (1) for cause, including fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the debtor by current management, either before or after the commencement of the case, or similar cause, but not including the number of holders of securities of the debtor or the amount of assets or liabilities of the debtor; or (2) if such appointment is in the interests of creditors, any equity security holders, and other interests of the estate, without regard to the number of holders of securities of the debtor or the amount of assets or liabilities of the debtor. 11 U.S.C. § 1104(a). The appointment of a Chapter 11 trustee has been described as an “ ‘ex traordinary’ act.” Petit v. New England Mort. Servs., Inc., 182 B.R. 64, 68 (D.Me.1995) (quoting In re Ionosphere Clubs, Inc., 113 B.R. 164, 167 (Bankr.S.D.N.Y.1990)); see Rivermeadows Assocs., Ltd., 185 B.R. 615, 617 (Bankr.D.Wyo.1995) (“extraordinary step”); In re Ford, 36 B.R. 501, 504 (Bankr.W.D.Ky.1983); In re Deena Packaging Indus., Inc., 29 B.R. 705, 706 (Bankr.S.D.N.Y.1983). The default position is that current management will retain control of the company, see In re Garland Corp., 6 B.R. 456, 460 (1st Cir. BAP 1980); In re The Bible Speaks, 74 B.R. 511, 512 (Bankr.D.Mass.1987), consistent with the “belief that current management is generally best suited to orchestrate the process of rehabilitation for the benefit of" }, { "docid": "14470499", "title": "", "text": "Hubbard, Inc., 152 B.R. 189, 197 (Bankr.W.D.Mich.1993). B. Factual justification. Appellant argues that there was no evidence which would justify sua sponte appointment of a trustee in this case. The Code says a trustee “shah” be appointed: (1) “for cause, including fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the debtor by current management,” or (2) if appointment is “in the interests of creditors, any equity security holders, and other interests of the estate.” 11 U.S.C. § 1104(a). The judge’s well-founded findings established fraud, dishonesty, gross mismanagement, and that appointment was in the interests of the estate. Appellant points out that the attorney for the creditors’ committee did not request appointment of a trustee. At least one other creditor’s attorney, however, requested that the court “on its own appoint a trustee in this case.” Even without such a request, the court is empowered to sua sponte appoint a trustee in order to protect the estate. The bankruptcy judge, not the attorney for the creditors’ committee, judges whether to appoint a trustee. The bankruptcy judge had good reasons for doing so, precisely in accord with what Congress listed as appropriate reasons. The fraud demonstrated here elicited action from the judge even though the creditors’ committee attorney had not raised the issue. No doubt it was because of situations like this, where appointment is highly desirable to prevent looting of the estate, and the judge is the first to comprehend its necessity, that Congress gave bankruptcy judges the power to do so. C.Due process. Fukutomi claims that he was not given adequate notice or opportunity to be heard on the issue of appointment of a trustee. Although Fukutomi says the bankruptcy court knew of the allegations in the Thomas Declaration months before the hearing, the judge stated that she did not read the declaration until the day of the hearing. The statute codifies the proposition that a trustee may be appointed “after notice and a hearing.” 11 U.S.C. § 1104(a). The rules require “reasonable” notice and opportunity for hearing. Fed.R.Bank.P. 9014. The Code defines the term “after notice and a" }, { "docid": "4098108", "title": "", "text": "Debtor, to our knowledge, provided no prior notice to the Committee that its tactics would be to introduce and rely upon the entire record at the hearing. Thus, the Committee had no chance to know what portions of the record contained the Debtor’s evidentiary basis for its motion and it could not reasonably prepare a defense. Therefore, we decline the Committee’s offer that we can consider the contents of .the entire record as the evidence necessary to support the Debtor’s motion to extend its exclusivity periods. However, we must realistically recognize that this is a complex case, and the incipient presence of the future claimants promises to make it considerably more complex. In the case of In re UNR Industries, Inc., 72 B.R. 789 (Bankr.N.D.Ill.1987), involving debtors faced with 17,000 asbestos-related tort claims, the court, in deference to the size and complexity of the case, accorded the Debtors a second 60-day exclusivity extension, over vigorous Committee opposition. The court did, however, also appoint an examiner sua sponte, principally to investigate whether the Debtors were making good-faith efforts and progress towards reorganization. An appointment of such an officer is a point to ponder here, since allegations of “fraud, dishonesty, incompetence, misconduct, mismanagement, or irregularity in the management of the affairs of the debtor,” 11 U.S.C. § 1104(b), are beginning to surface. Therefore, we shall not deny the Debt- or’s exclusivity motion, but shall schedule a further hearing to determine it. We shall schedule the hearing on January 12, 1988, prior to the January 13, 1988, date that the period in which the Debtor exclusively may solicit acceptances of a plan expires. We shall also direct that, on or before December 31,1987, the Debtor supply a list of the documents in this record which it wishes to place in the record on this motion, with appropriate paragraph and page references, to all of the interested counsel listed as recipients of this Opinion, and the Court. In that way, the due process rights of all parties wishing to oppose the Debtor’s motion will be protected. An Order consistent with the conclusions expressed in" }, { "docid": "3388000", "title": "", "text": "issues going to the merits. The threshold issues challenge Keene’s standing to seek the appointment of an examiner and argue that an examiner cannot be appointed unless the Court first denies a motion to appoint an operating trustee. The Committee also challenges the underlying merits of the application, claiming that Keene does not have qualifying debts in excess of $5 million, but even if it does, the appointment of the examiner is not mandated. Finally, the Committee argues that the appointment is not in the interest of creditors because the Keene’s application is made in bad faith and will be unduly expensive. For the reasons that follow, the Court concludes that the appointment of an examiner is in the interest of the creditors. 2. The Threshold Issues Section 1109(b) of the Bankruptcy Code states that “[a] party in interest, including the debtor ... may raise and may appear and be heard on any issue in a case under this chapter.” (Emphasis added). Section 1104(b) of the Bankruptcy Code authorizes a “party” to request the appointment of an examiner. These two sections are in pari materia, and provide, clearly and unambiguously, that a debtor is a party in interest who may seek the appointment of an examiner. Given the plain and unambiguous statutory language, the Court will enforce these provisions in accordance with their terms. See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) (citing Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1970)). The Committee’s other threshold issue, that the Court cannot appoint an examiner unless it first refuses to appoint a trustee, is also without merit. A motion to appoint an examiner stands on its own, and need not be part of an unsuccessful motion to appoint the trustee. See In re Gilman Services, Inc., 46 B.R. 322, 327 (Bankr.D.Mass. 1985). Indeed, the Court has the authority to appoint an examiner sua sponte. In re Public Service Company of New Hampshire, 99 B.R. 177, 182 (Bankr.D.N.H.1989); In re UNR Industries, Inc.," }, { "docid": "10275426", "title": "", "text": "debtor-in-possession by members of the business community with whom debt- or-in-possession has had business transactions and must, of necessity, continue to have the same. 64 B.R. at 560-561. Under § 1104(a)(1), the words “or similar cause” and § 102(3) indicates that the grounds for appointing a trustee are not limited to those specifically enumerated. See e.g., In re Brown, 31 B.R. 583 (D.Col.1983); In re Denrose Diamond, 49 B.R. 754 (Bankr.S.D.N.Y.1985); In re Ford, 36 B.R. 501 (Bankr.W.D.Ky.1983); and In re Main Line Motors, Inc., 9 B.R. 782 (Bankr.E.D.Pa.1981). In reported opinions, the most common basis for appointing a trustee under § 1104(a)(1) is for gross mismanagement and incompetence. See In re Paolino, 60 B.R. 828 (E.D.Pa.1986); In re Horn & Hardart Baking Co., 22 B.R. 668 (Bankr.E.D.Pa.1982). The various factors used to determine whether current management is guilty of gross mismanagement and incompetence will vary depending on the facts of the individual case. A summary of two cases provides clarification. In In re La Sherene, Inc., 3 B.R. 169 (Bankr.N.D.Ga.1980) , former Bankruptcy Judge Norton listed a multitude of factors which compelled the appointment of a trustee. The court stated: It is undisputed that [current management] ... directed or sanctioned acts which, if not constituting fraud, were deceptive and in wanton and reckless disregard of the financial reality of the business and its creditors ... Furthermore, ... without an overseer of the business affairs of this Debtor, the enterprise lacks managerial and operational credibility, and essential suppliers may decline further dealings with the Debtor, either because of past unpleasant experiences with current management or because of a distrust of such management altogether ... Only an independent ... trustee can supply the leadership and credibility needed ... to salvage [the Debtor’s] possibilities. Id. at 175-76. The court appointed a trustee notwithstanding the fact that current management provided certain talents which might have contributed to the debtor’s success. The debtor’s future plans to cure the lack of fiscal and managerial controls and procedures were also not sufficient to negate the appointment of a trustee. In In re Main Line Motors, Inc.," }, { "docid": "14470498", "title": "", "text": "proceeding sua sponte. We disagree. The statute plainly gives the bankruptcy judge authority to appoint a trustee sua sponte. A trustee may be appointed “on request of a party in interest or the United States trustee.” 11 U.S.C. § 1104(a). The provision entitling a United States trustee or party to make such a request does not preclude the court from doing so sua sponte: 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. 106(a). Though we have not found circuit court authority on point, appointments sua sponte have been understood by bankruptcy courts as authorized. See In re Embrace Systems Corp., 178 B.R. 112 (Bankr.W.D.Mich.1995); Matter of Mother Hubbard, Inc., 152 B.R. 189, 197 (Bankr.W.D.Mich.1993). B. Factual justification. Appellant argues that there was no evidence which would justify sua sponte appointment of a trustee in this case. The Code says a trustee “shah” be appointed: (1) “for cause, including fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the debtor by current management,” or (2) if appointment is “in the interests of creditors, any equity security holders, and other interests of the estate.” 11 U.S.C. § 1104(a). The judge’s well-founded findings established fraud, dishonesty, gross mismanagement, and that appointment was in the interests of the estate. Appellant points out that the attorney for the creditors’ committee did not request appointment of a trustee. At least one other creditor’s attorney, however, requested that the court “on its own appoint a trustee in this case.” Even without such a request, the court is empowered to sua sponte appoint a trustee in order to protect the estate. The bankruptcy judge, not the attorney for the creditors’ committee, judges whether to appoint a trustee. The bankruptcy" }, { "docid": "18294012", "title": "", "text": "Heating Co., Inc., 99 B.R. 518, 525 (Bankr.E.D.N.Y.1989). Although the court’s finding is limited to a factual determination whether “cause” exists, a court is given wide latitude in determining whether the challenged conduct rises to the level of “cause.” Comm. of Dalkon Shield Claimants v. A.H. Robins Co., Inc., 828 F.2d 239, 241-42 (4th Cir.1987) (noting that the construction of § 1104 “requires that the courts be given discretionary authority to determine whether the conduct rises to the level of ‘cause’ ”). When considering whether to appoint a trustee for cause, a court’s focus is on the debtor’s current management, not the misdeeds of past management. See In re Sletteland, 260 B.R. 657, 672 (Bankr.S.D.N.Y.2001) (“[0]n a motion for the appointment of a trustee, the focus is on the debtor’s current activities, not past misconduct.”) (citing 7 Collier on Bankruptcy ¶ 1104.02[3][e][i] (15th ed.)). In other words, the fact that the debtor’s prior management might have been guilty of fraud, dishonesty, incompetence, or gross mismanagement does not necessarily provide grounds for the appointment of a trustee under § 1104(a)(1), -as long as a court is satisfied that the current management is free from the taint of prior management. In re Microwave Products of America, 102 B.R. 666, 671 (Bankr.W.D.Tenn.1989). A court may consider both the pre-and postpetition misconduct of the current management when making the determination that “cause” exists for the appointment of a trustee. Midatlantic Nat’l Bank v. Anchorage Boat Sales, Inc. (In re Anchorage Boat Sales, Inc.), 4 B.R. 635, 644-45 (Bankr.E.D.N.Y.1980). 1. The Applicability of § 1101(e) Section 1104(e) was added to the Bankruptcy Code and became effective in October 2005. See 11 U.S.C. § 1104(e) (“The United States trustee shall move for the appointment of a trustee under subsection (a) if there are reasonable grounds to suspect that current members of the governing body of the debtor, the debtor’s chief executive or chief financial officer, or members of the governing body who selected the debtor’s chief executive or chief financial officer, participated in actual fraud, dishonesty, or criminal conduct in the management of the debtor or" }, { "docid": "3388001", "title": "", "text": "of an examiner. These two sections are in pari materia, and provide, clearly and unambiguously, that a debtor is a party in interest who may seek the appointment of an examiner. Given the plain and unambiguous statutory language, the Court will enforce these provisions in accordance with their terms. See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) (citing Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1970)). The Committee’s other threshold issue, that the Court cannot appoint an examiner unless it first refuses to appoint a trustee, is also without merit. A motion to appoint an examiner stands on its own, and need not be part of an unsuccessful motion to appoint the trustee. See In re Gilman Services, Inc., 46 B.R. 322, 327 (Bankr.D.Mass. 1985). Indeed, the Court has the authority to appoint an examiner sua sponte. In re Public Service Company of New Hampshire, 99 B.R. 177, 182 (Bankr.D.N.H.1989); In re UNR Industries, Inc., 72 B.R. 789, 795 (Bankr.N.D.Ill.1987). Certainly, the Court does not have to deny its own motion to appoint a trustee before it can appoint an examiner sua sponte. Finally, the argument finds no support in the statutory language. Section 1104(b) states, in substance, that the Court can appoint an examiner, under the appropriate circumstances, if it does not order the appointment of a trustee under subsection 1104(a). This is a limitation, not a requirement; and it means just what it says: if the Court has appointed a trustee, the Court cannot also appoint an examiner. This makes sense since the trustee’s investigative powers are at least as great as an examiner’s. See 11 U.S.C. § 1106(b). It does not mean, as the Committee suggests, that the Court must first refuse to appoint a trustee before it can direct the appointment of an examiner. 3. Appointment Under Section 1104(b)(2) Section 1104(b)(2) appears to mandate, on its face, that the Court must appoint an examiner if the debtor has $5 million of qualifying debt. Despite this mandatory" }, { "docid": "14470497", "title": "", "text": "Robert Fukutomi has engaged in fraudulent behavior with reference to this estate by requiring a 50% kickback from Thomas’ property management company. It should be noted that the employment of an independent management company was ordered by this Court in November 1992 to replace the prior management company which was also a Fukutomi-owned enterprise. It is abundantly clear to this Court that the interests of creditors are not being promoted by Robert Fukutomi’s management of this debtor. Bibo appealed to the district court, which affirmed. Analysis We review the district court’s decision on appeal from bankruptcy court de novo. In re Daily, 47 F.3d 366, 367 (9th Cir.1995). “We independently review the bankruptcy court’s decision and do not give deference to the district court’s determinations.” In re Weisman, 5 F.3d 417, 419 (9th Cir.1993). The bankruptcy court’s findings of fact are reviewed for clear error, and its conclusions of law are reviewed de novo. Id. A. Sua sponte appointment. Appellant argues that a bankruptcy court lacks authority to appoint a trustee in a Chapter 11 proceeding sua sponte. We disagree. The statute plainly gives the bankruptcy judge authority to appoint a trustee sua sponte. A trustee may be appointed “on request of a party in interest or the United States trustee.” 11 U.S.C. § 1104(a). The provision entitling a United States trustee or party to make such a request does not preclude the court from doing so sua sponte: 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. 106(a). Though we have not found circuit court authority on point, appointments sua sponte have been understood by bankruptcy courts as authorized. See In re Embrace Systems Corp., 178 B.R. 112 (Bankr.W.D.Mich.1995); Matter of Mother" }, { "docid": "4790627", "title": "", "text": "that oral motions for the appointment of an examiner were made at the hearing on oral argument regarding appointment of examiner on March 1, 1989, set forth above. However, assuming for the purposes of argument that no such motions were made, the court nevertheless believes it has the power to sua sponte appoint an examiner. See In re UNR Industries, Inc., 72 B.R. 789 (Bankr.N.D.Ill.1987); In re Landscaping Services, Inc., 39 B.R. 588 (Bankr.E.D.N.C.1984). JUSTIFICATION In this case the record justifies the appointment of an examiner. A showing has been made under section 1104(b)(1) of the Bankruptcy Code that the appointment is in the interests of this estate, and its various constituencies, in that there is need for investigation of matters relevant to the case and to the formulation of a plan. Moreover, the debtor’s qualifying liquidated debts clearly exceed the $5,000,000 threshold figure set forth in section 1104(b)(2) of the Code. The court has terminated exclusivity and there is every indication that there will be multiple plans of reorganization filed in this case. The court has created a 60-day negotiation period in which the parties are to achieve a consensual plan of reorganization if possible. The examiner will be useful in mediating that effort and in giving the court a report at the end of the 60-day period. The court also needs aid in understanding some of the rather arcane concepts employed in the utility rate-setting regulatory world in order to properly perform its duties. The court is really caught between two complete legal systems and will need the examiner as an “interpreter” if nothing else, i.e., the court perforce has to act with the concepts coming not only from the reorganization world but also from the utility regulatory world. The court most emphatically will need the examiner for the disclosure statement hearings — particularly if there are competing plans with the respective proponents contesting the adequacy of the information in each others’ disclosure statements. The examiner will be useful, either directly or through counsel, in literally “examining” witnesses from a neutral, disinterested standpoint so that the record is" }, { "docid": "18796597", "title": "", "text": "Of Fact and Conclusions of Law. 39. Any Findings of Fact that may be contained in the Conclusions of Law will stand as additional Findings of Fact. Conclusions of Law I. Jurisdiction 40. The Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and Local Rule 2.33 referring all bankruptcy cases and proceedings to the bankruptcy court for hearing and determination. This matter constitutes a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A). II. Appointment of a Trustee is Mandated by the Facts of This Case A. STANDARDS FOR THE APPOINTMENT OF a Trustee Under Section 1104 41. Section 1104(a) of the Bankruptcy Code directs the bankruptcy court to order the appointment of a trustee (1) for cause, including fraud, dishonesty, incompetence or gross mismanagement of the affairs of the debtor by current management, either before or after the commencement of the case, or similar cause, but not including the number of holders of securities of the debtor or the amount of assets or liabilities of the debtor; or (2) if such appointment is in the best interests of creditors, any equity security holders, and other interests of the estate, without regard to the number of holders of securities of the debtor or the amount of assets or liabilities of the debtor. 11 U.S.C. § 1104. 42. Determinations made pursuant to § 1104(a) of the Bankruptcy Code are fact intensive. See In re Sharon Steel Corp., 871 F.2d 1217, 1225 (3d Cir.1989) (section 1104(a) decisions must be made on a case by case basis). A bankruptcy court is required to order the appointment of a trustee where “cause” exists. Subsection (a)(1) identifies examples of “cause” including fraud, dishonesty, incompetence and gross mismanagement. However, this list is nonexhaustive. See, e.g., In re Madison Management Group, Inc., 137 B.R. 275, 281 (Bankr.N.D.Ill.1992) (Sonderby, J.); see also In re V. Salvino Oil & Heating Co., Inc., 99 B.R. 518, 525 (Bankr.E.D.N.Y.1989) (“grounds for appointing a reorganization trustee are not even limited to the derelictions specifically enumerated”). A determination of cause, therefore, is within the discretion of the court" }, { "docid": "2234657", "title": "", "text": "11 is the exception rather than the rule and that this is an extraordinary remedy available to creditors. In re Microwave Prods. of Am., Inc., 102 B.R. 666, 670 (Bankr.W.D.Tenn. 1989). Inasmuch as Chapter 11 is designed to give the debtor an opportunity to rehabilitate through reorganization, the Bankruptcy Code favors allowing the debt- or to remain in possession and operate the business. In re Clinton Centrifuge, 85 B.R. at 984. Moreover, the process of rehabilitation is generally most effective under current management who are familiar with the operation of the business involved. In re Marvel Entertainment Group, Inc., 140 F.3d 463, 471 (3d Cir. 1998). As the Fourth Circuit noted in Committee of Dalkon Shield Claimants v. A.H. Robins Co., Inc., 828 F.2d 239, 240 (4th Cir.1987), the overriding philosophy of Chapter 11 ... is to give the debtor a second chance. Consistent with such a philosophy is this court’s finding that current management should be permitted to identify and correct its past mistakes. Beside the dislocation caused by the appointment of a trustee, the Court must also consider the cost of the trustee and balance the harm of such an appointment against the benefits of a trustee’s appointment. See In re General Oil Distribs., Inc., 42 B.R. 402, 409 (Bankr.E.D.N.Y. 1984). The Court must weigh all of the factors and interests carefully because the appointment of a trustee is an extraordinary remedy which will cause additional expense to the estate. In re North Star Contracting Corp., 128 B.R. 66, 70 (Bankr.S.D.N.Y.1991). Although the Code and caselaw clearly favor allowing the debtor to remain in control and run the business, under certain circumstances the debtor may be dispossessed and other management appointed in the form of a trustee. See In re Microwave Prods., 102 B.R. at 670. The Code sets forth two separate standards for the Court’s determination of the necessity of appointing a trustee. Under § 1104(a)(1), upon a showing of cause, “including fraud, dishonesty, incompetence or gross mismanagement of the affairs of the debtor,” the Court “shall order” the appointment of a trustee. Alternatively, under § 1104(a)(2)," }, { "docid": "15139066", "title": "", "text": "the appointment of a trustee— (1) for cause, including fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the debt- or by current management, either before or after the commencement of the case, or similar cause, but not including the number of holders of securities of the debtor or the amount of assets or liabilities of the debtor; or (2) if such appointment is in the interests of creditors, any equity security holders, and other interests of the estate, without regard to the number of holders of securities of the debtor or the amount of assets or liabilities of the debtor. The appointment of a trustee under 11 U.S.C. § 1104 is an extraordinary remedy, In re Tyler, 18 B.R. 574, 577 (Bankr.S.D.Fla.1982), which should not be made lightly. Official Creditors’ Committee v. The Liberal Market, Inc., 13 B.R. 748, 752 (Bankr.S.D.Ohio 1981); In re 1243 20th Street, Inc., 6 B.R. 683, 686 (Bankr.D.C.Cir.1980). Consequently, the party seeking the appointment bears the burden of proof, In re Crescent Beach Inn, Inc., 22 B.R. 155, 159 (Bankr.D.Me.1982), and said burden must be carried by clear and convincing evidence. In Tyler, 18 B.R. at 577; Liberal Market, 13 B.R. at 751. A determination of whether sufficient “cause” exists to appoint a trustee compels the court to “eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests.” In re Main Line Motors, Inc., 9 B.R. 782, 784 (Bankr.E.D.Pa.1980), aff'd, No. 80-4444 (E.D.Pa.1981). These equitable considerations are clearly the focus of a determination under § 1104(a)(2), where the court is explicitly called upon to assess the interests of creditors and others involved in the estate. Id. Gulf, however, urges that such subjective considerations are irrelevant and immaterial in a decision under § 1104(a)(1). Gulf emphasizes the section’s use of “shall” in the words “the court shall order the appointment of a trustee for cause, including fraud, dishonestly, incompetence, or gross mismanagement_” Gulf argues therefrom that upon a finding that management has been incompetent, dishonest, or has committed acts of fraud or gross mismanagement, the court must" } ]

[ { "docid": "3661110", "title": "", "text": "(1) an in-service training program for teachers; (2) an affirmative reading and communication skills program; (3) new curriculum offerings; (4) a nondiscriminatory counseling and guidance program; (5) a human relations program; (6) codes of conduct providing for nondiscriminatory discipline; (7) the reassignment of faculty and staff; and (8) nondiscriminatory guidelines for construction and maintenance of school buildings. Evans v. Buchanan, 582 F.2d at 769-74. Thus we will survey compliance with these ancillary relief measures as well. By considering both the Green factors and the eight measures of ancillary relief ordered by this court in 1978, we honor the mandate set forth by the Supreme Court in Dowell that a school board under federal supervision “is entitled to a rather precise statement of its obligations.” Bd. of Education of Okla. City Public Schools, Indep. School Dist. No. 89, Oklahoma County, Okl. v. Dowell, 498 U.S. 237, 246, 111 S.Ct. 630, 636, 112 L.Ed.2d 715 (1991) (citing Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976)). Together, the Green factors and the ancillary remedial relief measures constitute these obligations, and thus precisely frame our inquiry as we determine whether the district court properly ordered the withdrawal of federal supervision. The essence of that inquiry recently was articulated by the Supreme Court: whether the [constitutional violator] ha[s] complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable. Freeman v. Pitts, 503 U.S. 467, 492, 112 S.Ct. 1430, 1446, 118 L.Ed.2d 108 (1992). Given the Court’s recent assertion that federal supervision of local school districts “ ‘was intended as a temporary measure to remedy past discrimination,”’ Jenkins, — U.S. at -, 115 S.Ct. at 2049 (quoting Dowell, 498 U.S. at 247, 111 S.Ct. at 637), we underscore that the phrase “to the extent practicable” implies a reasonable limit on the duration of that federal supervision. Indeed, to extend federal court supervision indefinitely is neither practicable, desirable, nor proper. We are keenly aware that, for as long as we have imposed" } ]

[ { "docid": "6393696", "title": "", "text": "desegregation constitute, against the background of applicable law, compelling arguments to end this litigation. It used to be extremely difficult to modify any kind of equitable decree. See United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932). But as we noted recently in ordering radical modification of another institutional reform decree, one that had subjected the Chicago police to severe restrictions on its power to investigate terrorist activities, the Supreme Court has adopted a much more flexible standard for the modification of decrees entered in institutional reform litigation than the Swift standard of yore. Alliance to End Repression v. City of Chicago, 237 F.3d 799, 800-01 (7th Cir.2001); see Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378-81, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992); Board of Education v. Dowell, supra, 498 U.S. at 248, 111 S.Ct. 630; see also Alexander v. Britt, 89 F.3d 194, 197-98 (4th Cir.1996). The Court believes the states and their subdivisions have a right to the restoration of control over the institutions of state and local government as soon as the objectives of the federal remedial decree have been achieved. Missouri v. Jenkins, supra, 515 U.S. at 99, 115 S.Ct. 2038; Bogard v. Wright, 159 F.3d 1060, 1065 (7th Cir.1998); People Who Care v. Rockford Board of Education, 153 F.3d 834 (7th Cir.1998) (per curiam); United States v. Board of School Commissioners, supra, 128 F.3d at 510. Unlike decrees that bind private parties, decrees that hand over the control of important state functions, such as education, to federal courts “are not intended to operate in perpetuity.” Board of Education v. Dowell, supra, 498 U.S. at 248, 111 S.Ct. 630. “[Tjhe Supreme Court disfavors permanent injunctions in school cases. The administration of public schools is a state executive function rather than a federal judicial function, and so ought not to be subjected to the perpetual tutelage of the federal courts.” United States v. Board of School Commissioners, supra, 128 F.3d at 510. The purpose of a school desegregation decree is to eliminate the consequences of segregation." }, { "docid": "7635698", "title": "", "text": "violate the Constitution or does not flow from such a violation.”). The temporal scope of desegregation orders is also limited in that such decrees “are not intended to operate in perpetuity.” Board of Educ. v. Dowell, 498 U.S. 237, 248, 111 S.Ct. 630, 637, 112 L.Ed.2d 715 (1991). “From the very first, federal supervision of local school systems was intended as a temporary measure to remedy past discrimination.” Id. at 247, 111 S.Ct. at 637. Dissolving a desegregation decree after the local authorities have operated in compliance with it for a reasonable period of time properly recognizes that ‘necessary concern for the important values of local control of public school systems dictates that a federal court’s regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination.’ Id., at 248, 111 S.Ct. at 637 (quoting Spangler v. Pasadena City Bd., of Educ., 611 F.2d 1239, 1245 n. 5 (9th Cir.1979) (Kennedy, J., concurring) (citing Milliken II, 433 U.S. at 280-82, 97 S.Ct. at 2757-58)); see also Freeman v. Pitts, 503 U.S. 467, 505, 112 S.Ct. 1430, 1453, 118 L.Ed.2d 108 (1992) (Scalia, J., concurring) (“But we also envisioned [federal supervision of local school systems] as temporary, I think, because the rational basis for the extraordinary presumption of causation simply must dissipate as the de jure system and the school boards who produced it recede further into the past.”). Thus, a desegregation order does not condemn a school board to “judicial tutelage for the indefinite future,” as “[n]either the principles governing the entry and dissolution of in-junctive decrees, nor the commands of the Equal Protection Clause of the Fourteenth Amendment, require any such Draconian result.” Dowell, 498 U.S. at 249, 111 S.Ct. at 638. In addition to remedying a constitutional violation, the end purpose of a desegregation order is “to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.” Freeman, 503 U.S. at 489, 112 S.Ct. at 1445. As the law of school desegregation has developed, that withdrawal of jurisdiction occurs when" }, { "docid": "13303281", "title": "", "text": "F.Supp. 1122, 1128 (M.D.Ala.1997) (explaining history and nature of pervasive, dual control of Alabama’s school systems at state and local levels). Hall claims that the Talladega Board is, hydra-like, imputedly responsible for a statewide policy or practice of reserving for white persons all superintendent-of-education positions in white-majority school districts in Alabama. The involvement of the State Superintendent’s office in this sorry history is well-documented and undeniable. Because of their efforts to impede and prevent the compliance of local school boards with desegregation orders issued by the federal court, the State Board and Superintendent were brought into the Lee v. Macon County Board of Education, 267 F.Supp. 458 (M.D.Ala.1967), beginning in the mid-1960’s. The court found that these state officials had asserted general control and supervision over all the public schools throughout the State of Alabama in order to continue the operation of a racially-segregated school system. See Lee v. Macon County Bd. of Educ., 231 F.Supp. 743, 745 (M.D.Ala.1964) (three-judge court) (per curiam); see also Lee v. Macon County Bd. of Educ., civil action no. 604-E (M.D.Ala. March 31, 1970) at 2 (three-judge court). As stated, a school system is granted unitary status only once the offending parties have adequately demonstrated to the court that they “have complied in good faith with [a] desegregation decree since it was entered and [that] the vestiges of past discrimination ha[ve] been eliminated to the extent practicable.” Freeman, 503 U.S. at 492, 112 S.Ct. at 1446 (quoting Board of Educ. of Oklahoma City Pub. Sch. v. Dowell, 498 U.S. 237, 249-250, 111 S.Ct. 630, 638, 112 L.Ed.2d 715 (1991)). Therefore, were it the case that the appointment of only white superintendents in white-majority school systems is a ves tige of, and perpetuates, the history of segregation in the educational system of Alabama; that these monochromatic appointments are due to a statewide policy or practice, impheating, at least in part, state officials, and are not simply the cumulative result of independent decisions made by isolated local school board officials; and that Talladega County remains a non-unitary school district, the court would have at least some" }, { "docid": "8797594", "title": "", "text": "evaluating the success of educational programs the Supreme Court stated: But this clearly is not the appropriate test to be applied in deciding whether a previously segregated district has achieved partially unitary status. See Freeman, 503 U.S. at 491 [112 S.Ct. at 1445]; [Board of Educ. of Oklahoma City Public Schools v.] Dowell, 498 U.S. [237] at 249-50 [111 S.Ct. 630, 637-38, 112 L.Ed.2d 715 (1991)]. The basic task of the District Court is to decide whether the reduction in achievement by minority students attributable to prior de jure segregation has been remedied to the extent practicable.... In reconsidering this order, the District Court should apply our three-part test from Freeman v. Pitts, supra, 503 U.S., at 491, 112 S.Ct., at 1445-1446. Id. The three-part test for partial unitariness was stated in Freeman v, Pitts, 503 U.S. at 491, 112 S.Ct. at 1446: A court’s discretion to order the incremental withdrawal of its supervision in a school desegregation case must be exercised in a manner consistent with the purposes and objectives of its equitable power. Among the factors which must inform the sound discretion of the court, in ordering partial withdrawal are the following: whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the court’s decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance. Jenkins III concludes: On remand, the District Court must bear in mind that its end purpose is not only “to remedy the violation” to the extent practicable, but also “to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.” Freeman, 503 U.S. at 489, 112 S.Ct. at 1445." }, { "docid": "17967043", "title": "", "text": "is “ “whether the constitutional violator ha[s] complied in good faith with the de segregation decree since it was entered, and whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable.’ ” Missouri v. Jenkins, 515 U.S. 70, 89, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (quoting Freeman v. Pitts, 503 U.S. 467, 492, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992), and Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 249-50, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991)). It is well established that defendants bear the burden to proof on their compliance with remedial orders and on the existence of any vestiges of the Green factors. See Freeman, 503 U.S. at 494, 112 S.Ct. 1430. In addition, this court previously has held that student achievement vestiges should be treated like other indicia of a segregated school district. See Berry v. School Dist. of City of Benton Harbor, 141 F.Supp.2d 802, 810 (W.D.Mich.2001). Therefore, as with the Green factors, defendants bear the burden of showing that any continuing student achievement deficits are not vestiges of their prior segre-gative conduct. Id. A. Good Faith Compliance As previously discussed, the court’s initial remedial order and various supplementary orders included a variety of components, including the elimination of racially identifiable schools within the BHASD on all of the Green factors, the development of magnet schools and interdistrict transfers, as well as various means of assuring the success of those components such as community involvement, monitoring and financing. In addition, the court ordered an achievement and social skills component, directing the defendants to implement the Comer Program throughout the district. The court stated that the “goal of persons working within this component will be to raise the level of student achievement, until achievement within the district reaches the average attained by Michigan students in state-wide achievement tests.” 515 F.Supp. at 370. The student achievement component was to be phased out over two additional school years if this standard had been met. Subsequently, in 1987, in accordance with a stipulation of the parties, the court modified the order" }, { "docid": "20643267", "title": "", "text": "the sole object of the consent decree. The consent decree itself does not reference mere compliance with federal law as its object. Rather, it speaks to the broader goals of enhancing recipients’ access to health care and improving the use of health care services by Texas EPSDT recipients. The decree implements the Medicaid statute “in a highly detailed way, requiring the state officials to take some steps that the statute does not specifically require.” The district court held that “[t]o interpret the sole object of the Consent Decree to ensure compliance with something less than that which is stated in the Consent Decree itself would be akin to rewriting the Consent Decree to conform to the constitutional floor. Such action is prohibited by the Supreme Court’s holding in Rufo.” To which we add that it is prohibited by the prior reversal of our holding in this case. Because the object of the consent decree is not mere compliance with federal law, the objects of the decree have not been attained. B. Defendants contend that if this court concludes that Frew II does not provide the applicable standard for terminating a consent decree, the district court erred by not applying the termination standard used by the Supreme Court in the school desegregation cases: Missouri v. Jenkins, 515 U.S. 70, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995); Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992); and Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991). In the context of deciding whether to modify or dissolve a desegregation decree, the Court has directed district courts to consider the following factors: [1] whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; [2] whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and [3] whether the school district has demonstrated, to the public and to the parents and students of the once" }, { "docid": "8717147", "title": "", "text": "I concur in Parts C and D of the majority opinion affirming the district court’s order imposing an equal apportionment of costs between the State of New York and Yonkers. I agree, for the reasons the majority states, that the remedy is a proper exercise of the district court’s equitable discretion and that the defenses asserted by the State are here unavailing. But I respectfully dissent from the majority’s reversal of the district court’s finding of vestiges and its order implementing “Educational Improvement Plan II.” I would remand on those issues for the district court to make an adequate statement of its factual findings. II. In cases involving allegations of the existence of vestiges of segregation in public schools, the Constitution imposes a precise mandate. The federal courts are to require school districts to “take all steps necessary to eliminate the vestiges of the unconstitutional de jure system,” Freeman v. Pitts, 503 U.S. 467, 485, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992), in order to eliminate racial discrimination “root and branch,” see Green v. County School Bd. of New Kent County, Va., 391 U.S. 430, 437-38, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). At the same time, the courts must enter decrees “tailored to remedy the injuries suffered by the victims of prior de jure segregation,” Missouri v. Jenkins, 515 U.S. 70, 102, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995), while not “aim[ing][to] eliminate! ] a condition that does not violate the Constitution or does not flow from such a violation,” Milliken v. Bradley, 433 U.S. 267, 282, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (citation omitted). The first of these two duties reflects the federal judiciary’s ongoing commitment first articulated in Brown v. Board of Educ. of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), to give full effect to the Equal Protection Clause of the Fourteenth Amendment by eradicating as far as practicable de jure public school segregation and its consequences. See Pitts, 503 U.S. at 487-89, 112 S.Ct. 1430; Board of Educ. of Oklahoma City v. Dowell, 498 U.S. 237, 246-47, 111 S.Ct. 630," }, { "docid": "7635697", "title": "", "text": "dual- school systems, not with myriad factors of human existence which can cause discrimination in a multitude of ways on racial, religious, or ethnic grounds. The target of the cases from Brown I to the present was the dual school system. The elimination of racial discrimination in public schools is a large task and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities. One vehicle can carry only a limited amount of baggage. It would not serve the important objective of Brown I to seek to use school desegregation cases for purposes beyond their scope, although desegregation of schools ultimately will have impact on other forms of discrimination. Id.; see also Milliken v. Bradley, 433 U.S. 267, 282, 97 S.Ct. 2749, 2758, 53 L.Ed.2d 745 (1977) (“Milliken II”) (“[Fjederal-eourt decrees must directly address and relate to the constitutional violation itself. Because of this inherent limitation upon federal judicial authority, federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation.”). The temporal scope of desegregation orders is also limited in that such decrees “are not intended to operate in perpetuity.” Board of Educ. v. Dowell, 498 U.S. 237, 248, 111 S.Ct. 630, 637, 112 L.Ed.2d 715 (1991). “From the very first, federal supervision of local school systems was intended as a temporary measure to remedy past discrimination.” Id. at 247, 111 S.Ct. at 637. Dissolving a desegregation decree after the local authorities have operated in compliance with it for a reasonable period of time properly recognizes that ‘necessary concern for the important values of local control of public school systems dictates that a federal court’s regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination.’ Id., at 248, 111 S.Ct. at 637 (quoting Spangler v. Pasadena City Bd., of Educ., 611 F.2d 1239, 1245 n. 5 (9th Cir.1979) (Kennedy, J., concurring) (citing Milliken II, 433 U.S. at 280-82, 97 S.Ct. at 2757-58)); see also Freeman" }, { "docid": "1502866", "title": "", "text": "this Court to declare unitary status. Even the KCMSD, presumably the beneficiary of a return to local control, does not want this Court to grant the State’s Motion for Unitary Status. In a prior ruling in this litigation, the Supreme Court cautioned against the plaintiffs and the KCMSD holding the State hostage to ever-increasing expenditures. Missouri v. Jenkins, 495 U.S. 33, 76, 110 S.Ct. 1651, 1676, 109 L.Ed.2d 31 (1990) (Kennedy, J., concurring). In this current proceeding, however, this Court is not too sure that the KCMSD and the State are not collaborating to hold the KCMSD taxpayers hostage to a court-ordered levy — all of which has the ef- feet of allowing either the voters of the Kansas City Missouri School District or the state legislature to avoid making difficult decisions about the financial support of the second largest school district in the state and one in which state-supported segregation had some egregious effects. The Court, however, must focus on the legal issues involved, in addition to the welfare of the Kansas City schoolchildren and the mandate of the Supreme Court to return the KCMSD to the control of state and local authorities as soon as possible-presumably whether they would like it or not Jenkins III, 515 U.S. at-, 115 S.Ct. at 2056. The shifting postures of the parties in this case mirror the change in direction that the Supreme Court has taken in recent years in their decisions regarding school desegregation. See Board of Education v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991); Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992); Missouri v. Jenkins, 515 U.S. 70, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995). No longer must the Court eliminate the vestiges of segregation “root and branch.” See Green v. County School Board of New Kent County, 391 U.S. 430, 438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). Instead, the Court must only assess whether everything “practicable” has been done to eliminate the vestiges of the prior discrimination and further, the Court may grant unitary status in incremental" }, { "docid": "8797593", "title": "", "text": "tradition of local autonomy of school districts and ordered that no additional programs be imposed that unwarrantably postpone the day when KCMSD will be able to operate on its own. Id. at -, 115 S.Ct. at 2056. The shortcoming of the State’s argument is that it edits the language of the Supreme Court in a manner that presents less than a full and fair reading of the Court’s holding. The Court in Jenkins III certainly refers to the restoration of local control on several occasions, see, e.g., id. at -, -, 115 S.Ct. at 2054, 2056, and the Court empha sizes the goal of returning the school district to local control, but the other part of the equation is that the district court must consider whether the previously segregated district has achieved partial unitary status. Jenkins III points out that the State had not sought a declaration of partial unitary status with respect to quality education programs. Id. at-, 115 S.Ct. at 2055. In rejecting arguments relating to whether national norms could be considered in evaluating the success of educational programs the Supreme Court stated: But this clearly is not the appropriate test to be applied in deciding whether a previously segregated district has achieved partially unitary status. See Freeman, 503 U.S. at 491 [112 S.Ct. at 1445]; [Board of Educ. of Oklahoma City Public Schools v.] Dowell, 498 U.S. [237] at 249-50 [111 S.Ct. 630, 637-38, 112 L.Ed.2d 715 (1991)]. The basic task of the District Court is to decide whether the reduction in achievement by minority students attributable to prior de jure segregation has been remedied to the extent practicable.... In reconsidering this order, the District Court should apply our three-part test from Freeman v. Pitts, supra, 503 U.S., at 491, 112 S.Ct., at 1445-1446. Id. The three-part test for partial unitariness was stated in Freeman v, Pitts, 503 U.S. at 491, 112 S.Ct. at 1446: A court’s discretion to order the incremental withdrawal of its supervision in a school desegregation case must be exercised in a manner consistent with the purposes and objectives of its equitable power." }, { "docid": "6424939", "title": "", "text": "(1985). IV. Discussion In Brown v. Board of Ed., 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873 (1954) {Brown I), the Supreme Court recognized that state-compelled segregation in schools violates the Fourteenth Amendment’s Equal Protection Clause. To effectuate Brown Fs mandate, the Supreme Court ordered district courts to supervise school boards that had practiced de jure segregation in their desegregation efforts. Brown v. Board of Ed., 349 U.S. 294, 301, 75 S.Ct. 753, 757, 99 L.Ed. 1083 (1955) (Brown II). District courts maintained supervision by issuing remedial orders and asserting jurisdiction over school boards to ensure compliance with those orders. The Supreme Court intended this federal supervision of local school systems to be a temporary measure. Board of Educ. of Oklahoma City v. Dowell, 498 U.S. 237, 247, 111 S.Ct. 630, 637, 112 L.Ed.2d 715 (1991). Since the legal justification for such supervision is a constitutional violation by local authorities, a district court must divest itself of jurisdiction when the constitutional violation has ceased and when local authorities have operated in compliance with a desegregation decree for a reasonable period of time. Id. at 248, 111 S.Ct. at 637; see also Freeman v. Pitts, 503 U.S. 467, 489, 112 S.Ct. 1430, 1445, 118 L.Ed.2d 108 (1992) (“[T]he ultimate objective [is] to return school districts to the control of local authorities.”). A district court’s decision to divest itself of jurisdiction “recognizes that ‘necessary concern for the important values of local control of public school systems dictates that a federal court’s regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination.’” Dowell, 498 U.S. at 247, 111 S.Ct. at 637 (citations omitted). Counterbalancing this recognition is the acknowledgment that “the potential for discrimination and racial hostility is still present in our country, and its manifestations may emerge in new and subtle forms after the effects of de jure segregation have been eliminated.” Freeman, 503 U.S. at 490, 112 S.Ct. at 1445. To ensure that local authorities are not continuing to practice discrimination, a district court’s determination of whether local authorities" }, { "docid": "6393697", "title": "", "text": "the institutions of state and local government as soon as the objectives of the federal remedial decree have been achieved. Missouri v. Jenkins, supra, 515 U.S. at 99, 115 S.Ct. 2038; Bogard v. Wright, 159 F.3d 1060, 1065 (7th Cir.1998); People Who Care v. Rockford Board of Education, 153 F.3d 834 (7th Cir.1998) (per curiam); United States v. Board of School Commissioners, supra, 128 F.3d at 510. Unlike decrees that bind private parties, decrees that hand over the control of important state functions, such as education, to federal courts “are not intended to operate in perpetuity.” Board of Education v. Dowell, supra, 498 U.S. at 248, 111 S.Ct. 630. “[Tjhe Supreme Court disfavors permanent injunctions in school cases. The administration of public schools is a state executive function rather than a federal judicial function, and so ought not to be subjected to the perpetual tutelage of the federal courts.” United States v. Board of School Commissioners, supra, 128 F.3d at 510. The purpose of a school desegregation decree is to eliminate the consequences of segregation. When they have been eliminate^ the decree has done its job and should be lifted. This simple principle, which we don’t understand the plaintiffs to be quarreling with, dictates our decision. The Rockford public schools have been desegregated. No longer are there any schools that are “white only” or “minority only,” or even approximations to such schools. Hundreds of millions of dollars have been poured into the construction and renovation of schools and into programs designed to extirpate the traces of unlawful segregation. Although minority educational achievement lags behind that of whites, there is no evidence that the lag is any greater in Rockford than in otherwise similar districts that have no history of racial discrimination. Four years ago almost to the day we noted the absence of “evidence that the gap in scholastic achievement between white and minority students in Rockford is any greater than the gap between white and minority students in school districts that have not been found to have discriminated against their black and Hispanic students.” Ill F.3d at 537. One" }, { "docid": "3378491", "title": "", "text": "MURPHY, Circuit Judge. Plaintiff William Price-Curtis filed this action against the Board of Education of the Oklahoma City Public Schools (“Board”); certain members of the Board acting in their individual capacities (“Board Members”); and Arthur Steller (former Superintendent of the Oklahoma City Public Schools), Sylvia Little (former Assistant Superintendent and supervisor of Plaintiff^ and Gloria Griffin (supervisor of Plaintiff), in their individual and official capacities (collectively, “Supervisors”). Plaintiff alleged he suffered harassment and retaliation and was ultimately discharged from his position as Equity/Affirmative Action Officer for the Oklahoma City Public Schools (“School District”), in violation of federal and state law. He appeals various rulings of the district court and a portion of the adverse jury verdict. This court concludes the district court improperly ruled that certain of Plaintiffs expressions relating to racial equity within the school district were not protected under the First Amendment for purposes of Plaintiffs civil rights and retaliatory discharge claims. We affirm on all other issues.' I. FACTS A. Background of the Dowell Litigation An overview of the efforts to desegregate the Oklahoma City public schools is neces sary for a complete understanding of this case. In 1961, Oklahoma schoolchildren and their parents commenced an action seeking equitable relief against the Board for operating a state-imposed dual system of education. See Dowell v. School Bd., 219 F.Supp. 427 (W.D.Okla.1963). In 1963, a federal district court held that the Board had intentionally segregated its schools. See id.; see also Board of Educ. v. Dowell, 498 U.S. 237, 240, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991). In 1972, after finding that the Board’s operational plans failed to eliminate the state-imposed segregation, the district court ordered the Board to implement a desegregation plan. See Dowell v. Board of Educ., 338 F.Supp. 1256, 1271-73 (W.D.Okla.1972). The court-ordered desegregation plan restructured Oklahoma City’s school attendance zones to create racial balance by requiring, inter alia, that black children be bused to formerly white schools. See id. at 1273. In 1975, the Board filed a motion to end the federal court’s jurisdiction. In 1977, the district court found that the Board had executed" }, { "docid": "20643268", "title": "", "text": "this court concludes that Frew II does not provide the applicable standard for terminating a consent decree, the district court erred by not applying the termination standard used by the Supreme Court in the school desegregation cases: Missouri v. Jenkins, 515 U.S. 70, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995); Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992); and Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991). In the context of deciding whether to modify or dissolve a desegregation decree, the Court has directed district courts to consider the following factors: [1] whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; [2] whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and [3] whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the courts’ decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance. The ultimate inquiry is “ ‘whether the [constitutional violator] ha[s] complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable.’ ” The district court rejected the notion that Freeman stated the standard for consent decree termination. Instead, the district court held that “[t]he applicable standard in the Fifth Circuit for both types of relief [modification and termination] is that announced in Rufo and applied in Cooper.” We need not pursue this question because defendants did not attempt to show that they were complying with the decree; rather, they argued that they were in compliance with federal law. But to prevail under Freeman, defendants must prove “full and satisfactory compliance with the decree.” They did not do so and their argument here is improvident. C. This record" }, { "docid": "23431360", "title": "", "text": "the instant matter, Defendants have not sought to rewrite the agreement in toto. On the contrary, they seek only to modify sections 5 and 6 of the Consent Decree, which establish officially the inflexible 15% parameter by which the racial composition of each school is measured. As the district court emphasized, “the remainder of the Consent Decree remains intact and its terms, conditions, responsibilities, and liabilities continue to bind the parties and are calculated to survive beyond the Court’s supervision and control of the Cleveland School District.” Termination Order, 934 F.Supp. at 1546. We therefore agree that the district court’s modification of the Consent Decree was “suitably tailored,” Rufo, 502 U.S. at 391, 112 S.Ct. 748, to the changed circumstances. Because this Court does not find that the district court erred in its determinations either that “enforcement of the decree without modification would be detrimental to the public interest,” id. at 384, 112 S.Ct. 748, or that the proposed modifications were suitably tailored to the changed circumstances, it cannot be said that the lower court abused its discretion in modifying the decree. III. THE UNITARY STATUS OF THE CLEVELAND PUBLIC SCHOOL SYSTEM In its Order of May 8, 1996, the district .court in the instant matter ordered that Defendants are entitled to a declaration of unitary status with respect to pupil assignments and that the Court’s jurisdiction over pupil assignments was dissolved so as to permit the school authorities henceforth to assign pupils in accordance with their best judgment. We are satisfied that the district court did not err in its application of the controlling law in this regard. See Missouri v. Jenkins, 515 U.S. 70, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995); Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992); Board of Educ. of Oklahoma City v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991); Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976); Milliken v. Bradley, 418" }, { "docid": "16400043", "title": "", "text": "also asked to visit several of the District’s schools. On April 19, 2000, accompanied by Superintendent Herman and by counsel for all parties, the Court had a first-hand opportunity to visit some of the school facilities and to observe classrooms and instructional techniques. At the Court’s request plaintiffs selected the schools for the visit, and arrangements were made to tour Wilkins and Dickson elementary schools, West Junior High School, and Woodland Hills Senior High School. Having considered all of the testimony and all of the evidence, we turn now to the question of whether the defendants have achieved unitary status by complying, in good faith, with this Court’s remedial orders. Legal Standards Federal judicial supervision of a local school district is intended to be a temporary measure. Board of Educ. v. Dowell, 498 U.S., 237, 247-48, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991); Coalition to Save Our Children v. State Bd. of Educ., 90 F.3d 752, 761 (3d Cir.1996.) The court’s aim must be to remedy the constitutional violation, and then “to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.” Freeman v. Pitts, 503 U.S. 467, 489, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992) (citing Milliken v. Bradley, 433 U.S. 267, 280-81, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977)). “The duty and responsibility of a school district once segregated by law is to take all steps necessary to eliminate the vestiges of the unconstitutional de jure system.” Freeman, 503 U.S. at 485, 112 S.Ct. 1430. When a school district has done so, we say that the district is now “unitary,” because it no longer operates a dual, or segregated, system of education. However, although achieving “unitary status” and thus relief from judicial supervision is the school district’s goal, the term itself does not have a fixed meaning, “and does not confine the discretion and authority of the District Court in a way that departs from traditional equitable principles.” Freeman, 503 U.S. at 487, 112 S.Ct. 1430 (citing Dowell, 498 U.S. at 245-46, 111 S.Ct. 630). Each school desegregation" }, { "docid": "2215671", "title": "", "text": "must ask “whether the Board ha[s] complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable.” Board of Educ. v. Dowell, 498 U.S. 237, 249-50, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991). Implicit in the Supreme Court’s use of the term “practicable” is “a reasonable limit on the duration of ... federal supervision.” Coalition to Save Our Children v. State Bd. of Educ., 90 F.3d 752, 760 (3d Cir.1996); see also Dowell, 498 U.S. at 247, 111 S.Ct. 630 (“From the very first, federal supervision of local school systems was intended as a temporary measure to remedy past discrimination.”). Hence, the goals of a desegregation order not only encompass a remedy for the violation, but also prompt restoration of local control. See Freeman, 503 U.S. at 490, 112 S.Ct. 1430 (“Returning schools to the control of local authorities at the earliest practicable date is essential to restore their true accountability in our governmental system.... Where control lies, so too does responsibility.”); Milliken I, 418 U.S. at 741-42, 94 S.Ct. 3112 (“No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process.”). Among the most important reference points in determining whether a school board has fulfilled its duties so that local control may be resumed are the factors set out in Green: student assignment, faculty assignment, facilities and resources, transportation, staff assignment, and extracurricular activities. See Green, 391 U.S. at 435, 88 S.Ct. 1689. In its discretion, a court conducting a unitary status hearing may consider other relevant factors not mentioned in Green. See Freeman, 503 U.S. at 492, 112 S.Ct. 1430. We address the district court’s consideration of each factor in turn, but only to determine whether “the district court’s account of the evidence is plausible in light of the record viewed in its entirety.” Anderson, 470 U.S. at 573-74, 105" }, { "docid": "1287880", "title": "", "text": "case in 1985 “there was no retention of jurisdiction by th[e] court and there remained no residual injunction requiring Talladega County Board of Education to do or not to do anything.” The whole point of the dismissal, the court noted, “was to require that any party who found the dismissal erroneous do something about it then.” The court concluded that the appellants could obtain the relief they sought only by filing a new lawsuit. This appeal followed. We affirm the district court’s order. II. We first reject the appellants’ contention that the court orders enjoining the TCBE, because they were never expressly vacated, remain enforceable even though the district court has declared that the Talladega County School System has attained unitary status and has dismissed the case. By operation of law, the orders enjoining the TCBE were dissolved when the district court declared that the school system had attained unitary status. This is so because the limited nature of a federal court’s remedial powers as well as the fundamental limitations of federalism render continuing federal judicial supervision of local school authorities incompatible with a finding of unitary status. See Board of Educ. of Oklahoma City Pub. Schs. v. Dowell, — U.S. —, —, 111 S.Ct. 630, 637, 112 L.Ed.2d 715 (1991); United States v. Overton, 834 F.2d 1171, 1174 (5th Cir.1987). Injunctive decrees in school desegregation cases were never intended to operate in perpetuity. Dowell, — U.S. at —, 111 S.Ct. at 637. Rather, federal supervision of a local school authority that has operated a racially dual system is a temporary measure that should last only as long as necessary to remedy past racial discrimination. Id. The purpose of a school desegregation decree is to effect a transition from a school system tainted with state-imposed segregation to a racially nondfeeriminatory school system. See Brown v. Board of Educ., 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955); Green v. New Kent County Sch. Bd., 391 U.S. 430, 436, 88 S.Ct. 1689, 1693, 20 L.Ed.2d 716 (1968). We stress the temporary nature of federal judicial supervision over local" }, { "docid": "3378492", "title": "", "text": "the Oklahoma City public schools is neces sary for a complete understanding of this case. In 1961, Oklahoma schoolchildren and their parents commenced an action seeking equitable relief against the Board for operating a state-imposed dual system of education. See Dowell v. School Bd., 219 F.Supp. 427 (W.D.Okla.1963). In 1963, a federal district court held that the Board had intentionally segregated its schools. See id.; see also Board of Educ. v. Dowell, 498 U.S. 237, 240, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991). In 1972, after finding that the Board’s operational plans failed to eliminate the state-imposed segregation, the district court ordered the Board to implement a desegregation plan. See Dowell v. Board of Educ., 338 F.Supp. 1256, 1271-73 (W.D.Okla.1972). The court-ordered desegregation plan restructured Oklahoma City’s school attendance zones to create racial balance by requiring, inter alia, that black children be bused to formerly white schools. See id. at 1273. In 1975, the Board filed a motion to end the federal court’s jurisdiction. In 1977, the district court found that the Board had executed the desegregation plan properly and that “ ‘substantial compliance with the constitutional requirements ha[d] been achieved.’ ” Dowell, 498 U.S. at 241, 111 S.Ct. 630 (quoting No. CIV-9452 (W.D. Okla. Jan 18, 1977)). The court therefore relinquished its jurisdiction over the ease, ending its supervision over the Board. See id. at 242, 111 S.Ct. 630. The court did not, however, vacate its 1972 decree mandating implementation of the desegregation plan. See Dowell v. Board of Educ., 8 F.3d 1501, 1505 (10th Cir.1993). The Board continued to operate its schools in substantial conformity with the 1972 court-ordered desegregation plan until 1985, when the Board adopted the Student Reassignment Plan (“SRP”). See id. at 1505-06. Under the SRP, a number of previously desegregated schools were returned to primarily one-race status for the asserted purposes of increasing parental involvement and alleviating greater busing burdens on young black children caused by demographic changes. See Dowell, 498 U.S. at 242, 111 S.Ct. 630. The SRP returned students in grades 1-4 to neighborhood schools, although busing continued for all students above" }, { "docid": "23431361", "title": "", "text": "abused its discretion in modifying the decree. III. THE UNITARY STATUS OF THE CLEVELAND PUBLIC SCHOOL SYSTEM In its Order of May 8, 1996, the district .court in the instant matter ordered that Defendants are entitled to a declaration of unitary status with respect to pupil assignments and that the Court’s jurisdiction over pupil assignments was dissolved so as to permit the school authorities henceforth to assign pupils in accordance with their best judgment. We are satisfied that the district court did not err in its application of the controlling law in this regard. See Missouri v. Jenkins, 515 U.S. 70, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995); Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992); Board of Educ. of Oklahoma City v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991); Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976); Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). In so ruling, we rely upon the reasons set forth by the district court in the thorough analysis of its Order of May 8, 1996. See Termination Order, 934 F.Supp. at 1546-58. We find convincing the district court’s analysis of Freeman, where the Supreme Court found that the school system in DeKalb County, Georgia, had fully and satisfactorily complied with the student assignment component of the remedial decree in that case. Having examined both the efforts of the DeKalb County school system and the demographic changes that had occurred within the 17-year life span of the remedial consent decree, the Supreme Court affirmed the conclusion of the trial court in that case that massive bussing was not a viable option and further enunciated an important principle for school desegregation cases across the nation: That there was racial imbalance in student attendance zones was not tantamount to a showing" } ]

[ { "docid": "13109313", "title": "", "text": "Seventh Circuit that there is a knowing and intelligent waiver where the defendant “ ‘understood that the choice confronting him was, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge....’” Sammons, 918 F.2d at 597 (citing United States ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1180 (7th Cir.1983)). The evidence only supports a conclusion that, despite his intellectual limitations, Sowell understood this choice. Hence, Sowell’s jury waiver survives constitutional scrutiny, and a writ cannot issue on the ground that it did not. IV. Ineffective Assistance of Counsel As Sowell made a constitutionally effective waiver of his right to a jury trial, his only remaining claim is ineffective assistance of trial counsel. Sowell, however, has not demonstrated that his counsel’s performance was unreasonable. “A claim of ineffective assistance of counsel presents a mixed question of law and fact; therefore we review both the state court and district court determinations de novo. Our de novo review includes both the performance and prejudice components of an ineffective assistance claim.” Coleman v. Mitchell, 268 F.3d 417, 445 (6th Cir.2001) (citations omitted). Ineffective assistance of counsel claims are generally governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in which the Supreme Court established a two-part inquiry: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient perfoi’mance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In determining whether an attorney’s conduct was deficient, the Supreme Court stressed that" } ]

[ { "docid": "22866421", "title": "", "text": "of the jury must be unanimous, and (4) that if the defendant waives a jury trial, the judge alone will determine guilt or innocence. DeRobertis, 715 F.2d at 1178; see United States v. Delgado, 635 F.2d 889 (7th Cir.1981), and United States v. Scott, 583 F.2d 362 (7th Cir.1978). In Martin, we specifically declined to join the Seventh Circuit in exercising our supervisory powers on this issue. We explained that “[w]e are confident that such a rule will be unnecessary since district courts will take a few moments and inform defendants of their jury trial right on the record. These few minutes will avoid the troublesome, time consuming task” confronting courts of appeals addressing the issue without the benefit of a fully developed record. Martin, 704 F.2d at 275 (emphasis in original). Other circuits have joined us in this request. See United States v. Cochran, 770 F.2d 850, 852 (9th Cir.1985) (listing cases). While the district court failed to conduct the suggested colloquy in this action, the record does not disclose any evidence that Sammons was so unaware of the rudimentary elements of trial by jury that his waiver cannot stand. Compliance with the writing requirement set out in Federal Rule of Crimiminal Procedure 23(a) “creates a presumption that the waiver is a voluntary, knowing and intelligent one,” Cochran, 770 F.2d at 851, and on the facts now before us we can “do no more than hold that the unsupplemented record does not disclose a basis for reversal.” Id. at 851-52 n. 1. Sammons invites us to consider facts outside the record by including an affidavit with his brief on appeal. We agree with the Ninth Circuit that “facts outside the record may be introduced to show that the waiver was not made voluntarily, knowingly, or intelligently but that the proper vehicle for doing so is a habeas corpus proceeding.” Id. at 852 n. 1. Accordingly, if Sammons wishes to pursue his argument that his waiver was not knowingly or intelligently made, he should do so through filing a petition under 28 U.S.C. § 2255. See United States v. Goodwin," }, { "docid": "15394387", "title": "", "text": "304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Id. at 464, 58 S.Ct. at 1023. This standard was subsequently refined by the Supreme Court in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). According to that case “[wjaivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Id. at 748, 90 S.Ct. at 1469 (footnote omitted). See also United States ex rel. Williams v. DeRobertis, 715 F.2d 1174 (7th Cir. 1983) (waiver of jury trial). If a valid waiver is obtained, the defendant cannot at a later date attack his conviction based on an assertion of conflict. “A truly knowing and intelligent waiver accepted by the court will insulate a conviction from later attack.” United States v. Flanagan, 679 F.2d 1072, 1076 (3d Cir.1982), cert. granted, U.S. -, 103 S.Ct. 721, 74 L.Ed.2d 948 (1983). See also United States v. Garcia, 517 F.2d at 276; United States v. Gaines, 529 F.2d at 1041; and United States ex rel. Tonaldi v. Elrod, 716 F.2d 431 (7th Cir. 1983). Thus, we now turn to an examination of the circumstances surrounding Bradshaw’s decision to retain his trial court attorney to determine whether he did, in fact, waive his right to conflict-free assistance of counsel. When the three occasions on which both defendants were advised of their rights concerning joint representation are examined in an objective and discriminating light, it becomes apparent that Bradshaw voluntarily, knowingly and intelligently waived his right to separate and conflict-free counsel. Short of holding that the district court was required to order Bradshaw to retain separate counsel, it is hard for us to understand how the magistrate and trial judge could have" }, { "docid": "22866418", "title": "", "text": "such a trial is guaranteed by the Constitution, or the advantages of a jury trial over a bench trial. Sammons places particular emphasis on the fact that the district judge did not apprise him of the impact of the rules of evidence on the relative merits of a bench and a jury trial, and particularly of the fact that the judge, who had presided over previous criminal proceedings involving Sammons, would have knowledge of his prior convictions and unlawful activity of which a jury would not have. Finally, Sammons points out the fact that Judge Edgar had knowledge of an earlier “Motion for Rearraignment” in which Sammons had requested permission to change his not guilty pleas to guilty. We stated in United States v. Martin, 704 F.2d 267 (6th Cir.1983), that: Criminal defendants may waive their right to trial by jury only if four conditions are met. First, the waiver must be in writing. Second, the government attorney must consent to the waiver. Third, the trial court must approve the waiver. Fourth, the defendant’s waiver must be voluntary, knowing and intelligent. Id. at 271; see also United States ex rel. McCann v. Adams, 320 U.S. 220, 64 S.Ct. 14, 88 L.Ed. 4 (1943); Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930); United States ex rel. Wardick v. Chrans, 869 F.2d 1084 (7th Cir.1989); United States v. Anderson, 704 F.2d 117 (3d Cir.1983). Interpreting the “knowing and intelligent” requirement in Martin, we held that a “technical knowledge of the jury trial right” is not required for a waiver to be effective. We explained that: A defendant is sufficiently informed to make an intelligent waiver if he was aware that a jury is composed of 12 members of the community, he may participate in the selection of the jurors, the verdict of the jury must be unanimous, and that a judge alone will decide guilt or innocence should he waive his jury trial. Knowledge of these essential attributes is generally sufficient to enable a defendant to make a knowing and intelligent decision. Martin, 704 F.2d at" }, { "docid": "13109302", "title": "", "text": "in dicta some specific aspects of a jury trial about which a defendant should have at least some knowledge before waiving a jury trial. The court observed that a defendant ignorant of the nature of the jury trial right cannot intelligently weigh the value of the safeguard. A defendant, therefore, should have both the mental ability and some knowledge of the jury trial right before he is allowed to waive it. A technical knowledge of the jury trial right, however, is not what is required. A defendant is sufficiently informed to make an intelligent waiver if he was aware that a jury is composed of 12 members of the community, he may participate in the selection of the jurors, the verdict of the jury must be unanimous, and that a judge alone will decide guilt or innocence should he waive his jury trial right. Knowledge of these essential attributes is generally sufficient to enable a defendant to make a knowing and intelligent decision. Martin, 704 F.2d at 273 (citations omitted). In Martin, however, the court explicitly stated that there is no constitutional requirement for the trial court to conduct a colloquy with the defendant pri- or to a jury waiver. Id. at 274-75. In Sammons, this court considered the Martin passage and expressly stated that the elements of a knowing jury waiver outlined therein are not constitutionally required. See Sammons, 918 F.2d at 597. Specifically, the Sammons court stated: The statement that this knowledge is sufficient is not, of course, equivalent to a statement that it is constitutionally required. In fact, the Seventh Circuit has held that a defendant who “understood that the choice confronting him was, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge” had knowingly and intelligently waived his right to trial by jury. Id. (emphasis in original). The court went on to hold that “[w]hile the district court failed to conduct the suggested colloquy in this action, the record does not disclose any evidence that" }, { "docid": "21390777", "title": "", "text": "the hearing. Boynes did not testify. The district court found Boynes’ waiver to be knowing, intelligent, and voluntary and denied the motion for a new trial. The court sentenced Boynes to life imprisonment plus 480 months. Boynes then brought this appeal. II Boynes contends that he did not knowingly, intelligently, and voluntarily waive his right to a jury trial. Cobbling together several strains of argument, Boynes contends that without a “formal court inquiry” he could not have knowingly, intelligently, and voluntarily waived his right to a jury trial during the time that his relationship with his attorney was “characterized by adversarial contentious interactions.” Although we reiterate our view that it is much preferable for a district court to insure itself on the record before accepting the defendant’s jury waiver, it is not a constitutional imperative. The constitutional imperative is this, no less and no more: the waiver must be knowing, intelligent, and voluntary. The district court’s findings of historical fact are reviewed for clear error, though the ultimate question of waiver is reviewed de novo. United States v. Khan, 461 F.3d 477, 491 (4th Cir.2006) (citing United States v. Robertson, 45 F.3d 1423, 1430 (10th Cir.1995), which more fully articulates the standard of review). Accordingly, because we find no clear error in the district court’s factual findings and we agree with the district court as to constitutional sufficiency of the waiver on those facts, we affirm. Rule 23(a) of the Federal Rules of Criminal Procedure provides that “[i]f the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves.” The Sixth Amendment requires that the waiver be knowing, voluntary, and intelligent. Patton v. United States, 281 U.S. 276, 312-13, 50 S.Ct. 253, 74 L.Ed. 854 (1930) overruled on other grounds by Williams v. Florida, 399 U.S. 78, 92, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). In United States v. Hunt, 413 F.2d 983 (4th Cir.1969) (per curiam), this court specifically held that although it is undoubtedly the “better" }, { "docid": "4819681", "title": "", "text": "trial, including calling witnesses, further presenting his case, and submitting his case to the jury for a determination of his guilt or innocence. He understood that he could choose between being judged by a group of his peers or pleading to the crime and accepting the Government’s support and sentencing recommendations. That understanding, coupled with his lawyer’s advice and the fact that he decided to plead after listening to several Government witnesses testify against him, indicates that his plea and waiver were strategic choices and, thus, valid. See United States v. England, 507 F.3d 581, 586 (7th Cir.2007) (“A court does not have to give the defendant a crash course in criminal law or trial proce dure before a defendant’s waiver of his right to counsel will be voluntary.”); cf. DeRobertis, 715 F.2d at 1182-83 (noting, in evaluating the validity of a defendant’s waiver of his right to a jury trial, that “a defendant who is aware that the choice he faces is between being judged by a group of his fellow citizens or a judge may conclude intelligently that his lawyer’s advice, based upon his experience and his knowledge of law and procedure, is entitled to controlling weight”). Favorably construing his argument, Alcala’s strongest claim is that he did not understand that, once accepted by the court, his plea constituted the basis for his conviction, and, as part of his conviction, an attempt to withdraw it would fall within the scope of his appellate waiver. Such specifics were not communicated by either the district court or counsel during the colloquy. Moreover, neither the court nor counsel explicitly stated that, once accepted by the court, he had no right to revoke his plea and that his ability to do so hinged on the court’s discretion. See generally United States v. Redmond, 667 F.3d 863, 870-71 (7th Cir.2012) (“There is no absolute right to withdraw a guilty plea.”). Arguably, the terms of his plea did not expressly and unambiguously clarify that he could not change his mind, see United States v. Sakellarion, 649 F.3d 634, 638-39 (7th Cir.2011) (“We enforce appellate" }, { "docid": "11266379", "title": "", "text": "Patton v. United States, 281 U.S. 276, 298, 50 S.Ct. 253, 258, 74 L.Ed. 854 (1930), only if the waiver is voluntary and knowing, Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970), this argument goes both to Milone’s Sixth Amendment right to a jury trial and to ineffective assistance of counsel. With respect to whether Milone’s waiver was knowing and intelligent, the burden is upon Milone to demonstrate that his waiver of the right to a jury trial was prima facie invalid. United States ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1178 (7th Cir.1983), certiorari denied, 464 U.S. 1072, 104 S.Ct. 982, 79 L.Ed.2d 219 (1984). In this case, petitioner admits that either he or his counsel waived a jury trial. R. 138 at 23. He also acknowledges that his counsel advised him to waive trial by a jury because a jury would have difficulty understanding the expert evidence. Id. at 24. Thus petitioner has not made a prima facie case that the waiver was invalid. Indeed, it appears that Milone “understood that the choice confronting him was, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge,” Williams v. DeRobertis, 715 F.2d at 1180, and that for prudential reasons he elected the latter course. “In addition, the fact that petitioner was represented by competent counsel throughout the proceedings further indicates that he knowingly waived his right.” United States ex rel. Wandick v. Chrans, 869 F.2d 1084, 1088 (7th Cir.1989). The record indicates that Mione's waiver of the right to a jury trial was knowing and intelligent. With respect to the ineffective assistance claim, counsel's recommendation to waive a jury trial was a reasonable trial strategy. Counsel's stated concern was that the jury would have trouble understanding the expert testimony. Under the circumstances counsel's performance was not unconstitutionally deficient. Finally, Mione notes that he did not testify in his own behalf at trial. This argument goes both to Milone's Fourteenth Amendment" }, { "docid": "14847685", "title": "", "text": "F.2d 1256 (7th Cir.1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1976). However, like any constitutional right, it can be waived. As we noted recently in Bradshaw, 719 F.2d at 911, the standard for measuring an effective waiver of a constitutional right was set forth in the case of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938): A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. Id. at 464, 58 S.Ct. at 1023. The Supreme Court in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), stated that “[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Id. at 748 (footnote omitted). See also United States ex rel. Williams v. DeRobertis, 715 F.2d 1174 (7th Cir.1983) (waiver of jury trial); United States v. Frye, 738 F.2d 196 (7th Cir.1984) (defendant did not knowingly and voluntarily enter guilty plea partly because of multi-party representation). If a valid waiver is obtained, the defendant cannot at a later date attack his conviction based on an assertion of conflict. “A truly knowing and intelligent waiver accepted by the court will insulate a conviction from later attack.” United States v. Flanagan, 679 F.2d 1072, 1076 (3d Cir.1982), aff’d, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). See also United States v. Gaines, 529 F.2d at 1041; United States ex rel. Tonaldi v. Elrod, 716 F.2d 431 (7th Cir.1983) . Both Biagio and Tom Cirrincione claim that they did not knowingly and voluntarily waive their right to separate counsel, as outlined in Johnson v. Zerbst, because of the alleged inadequacies in the district court’s Fed.R.Crim.P. 44(c) hearing. Rule 44(c) “provides a procedure for protecting a defendant’s sixth amendment right" }, { "docid": "14847686", "title": "", "text": "(footnote omitted). See also United States ex rel. Williams v. DeRobertis, 715 F.2d 1174 (7th Cir.1983) (waiver of jury trial); United States v. Frye, 738 F.2d 196 (7th Cir.1984) (defendant did not knowingly and voluntarily enter guilty plea partly because of multi-party representation). If a valid waiver is obtained, the defendant cannot at a later date attack his conviction based on an assertion of conflict. “A truly knowing and intelligent waiver accepted by the court will insulate a conviction from later attack.” United States v. Flanagan, 679 F.2d 1072, 1076 (3d Cir.1982), aff’d, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). See also United States v. Gaines, 529 F.2d at 1041; United States ex rel. Tonaldi v. Elrod, 716 F.2d 431 (7th Cir.1983) . Both Biagio and Tom Cirrincione claim that they did not knowingly and voluntarily waive their right to separate counsel, as outlined in Johnson v. Zerbst, because of the alleged inadequacies in the district court’s Fed.R.Crim.P. 44(c) hearing. Rule 44(c) “provides a procedure for protecting a defendant’s sixth amendment right to effective assistance of counsel where two or more defendants have been jointly charged or are to be jointly tried, and are represented by the same counsel.” United States v. Dressel, 742 F.2d 1256, 1258 (10th Cir.1984) ; see also United States v. Burney, 756 F.2d 787, 790 (10th Cir.1985). Under that Rule: [T]he court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise the court shall take such measures as may be appropriate to protect each defendants’ right to counsel. Fed.R.Crim.P. 44(c). While a defendant’s claim that his defense was harmed by his attorney’s divided loyalties implicates the sixth amendment, that constitutional mandate does not require automatic reversal unless a trial court fails to conduct an inquiry after either a timely conflict objection, Holloway v. Arkansas, 435 U.S. 475, 488, 98 S.Ct. 1173, 1180, 55 L.Ed.2d 426 (1978)," }, { "docid": "2248325", "title": "", "text": "for district courts to conduct a colloquy ... and no apparent reason for not doing so.” United States v. Cochran, 770 F.2d 850, 852 (9th Cir.1985). Some form of waiver colloquy has been endorsed by the Courts of Appeals for the First, Second, Fourth, Sixth, Seventh, Ninth, Tenth, and D.C. Circuits, as well as by our own. See United States v. Leja, 448 F.3d 86, 96 (1st Cir.2006) (“[H]ad the court in open court spoken directly to the defendant himself on the record, rather than just with counsel, this would have reinforced the judge’s subsequent observations that the defendant had assented to his counsel’s waiver of a jury trial.”); Marone v. United States, 10 F.3d 65, 67 (2d Cir.1993) (“[W]e suggest the district courts individually inform each defendant, on the record, of the fundamental attributes of a jury trial before accepting a waiver.”); Anderson, 704 F.2d at 119 (“[W]e believe that a colloquy between the district judge and the defendant is preferable to the mere acceptance by the court of a written waiver and the filing of it in the record of the case.”); United States v. Boynes, 515 F.3d 284, 286 (4th Cir.2008) (“[Though not a constitutional imperative, i]t is much preferable for a district court to [assure] itself on the record before accepting the defendant’s jury waiver....”); Martin, 704 F.2d at 274 (“We implore the district courts to personally inform each defendant of the benefits and burdens of jury trials on the record prior to accepting a proffered waiver.”); United States v. Rodriguez, 888 F.2d 519, 527 (7th Cir.1989) (“[While not constitutionally required, a colloquy] should occur before the court accepts a waiver of the right to trial by jury.”); Cochran, 770 F.2d at 853 (“Like the Sixth Circuit, we ‘implore’ district courts to [conduct a waiver colloquy.]”); United States v. Robertson, 45 F.3d 1423, 1432 (10th Cir.1995) (“In recognition of the importance of a colloquy between the defendant and district court regarding the decision to waive the right to trial by jury, we join those circuits that ... strongly urge district courts personally to inform each defendant" }, { "docid": "15032758", "title": "", "text": "rights leads to an unknowing, unintelligent and involuntary waiver. On the other hand, to the extent that improperly administered pleas generate and encourage appeals which are time consuming, burdensome and difficult to process, the societal interests in rehabilitation, speedy justice, swift punishment and deterrence are thwarted. United States v. Carter, 619 F.2d 293, 296-97 (3d Cir.1980). It is incumbent upon any court accepting a guilty plea to ensure that the criminal defendant has been apprised of and understands the constitutional rights waived upon entry of a guilty plea: [T]he hallmark of our criminal justice system is fundamental fairness. Fundamental fairness dictates that guilty plea proceedings be undertaken sensitively. Carter, 619 F.2d at 299. Such sensitivity requires that, in the absence of testimony that a criminal defendant understands the constitutional rights he waives upon pleading guilty, a state trial court must engage in a colloquy on the record sufficient to ensure that the defendant has been apprised of his constitutional right to a jury trial, right to confront his accusers, and the privilege against self-incrimination. Anything less fails to ensure that a criminal defendant has been adequately informed of his constitutional rights and renders the plea vulnerable to collateral attack. The failure to specifically articulate Boykin rights, however, is not dispositive if the circumstances otherwise establish that the plea was constitutionally acceptable. United States v. Stewart, 977 F.2d 81, 85 (3d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1433, 122 L.Ed.2d 800 (1993) (plea colloquy adequate despite trial court’s failure to enumerate Boykin rights given that those rights were reviewed in prior plea colloquy that occurred only six weeks earlier). The critical issue here is whether the circumstances surrounding Hill’s plea evidence that it was in fact knowing and voluntary; what Hill understood from the words spoken to and around him during court proceedings — a question of fact. Hill had the burden of persuasion to establish that his plea was neither intelligent nor voluntary. Stewart, 977 F.2d at 85. The district court determined that Hill failed to carry his burden in large part based on its review of the" }, { "docid": "4819678", "title": "", "text": "credence to the defendant’s representations to the court during his plea colloquy, during which he is obligated to tell the truth. See Koons v. United States, 639 F.3d 348, 352 (7th Cir.2011); Hutchings v. United States, 618 F.3d 693, 699 (7th Cir.2010). His waiver is knowing and voluntary if he “understand[s] the choice confronting him and ... understand^] that choice is his to make.” United States ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1182-83 (7th Cir.1983) (discussing waiver of the right to trial by jury); see also United States v. Johnson, 534 F.3d 690 (7th Cir.2008) (“[W]aiver is likely knowing and voluntary if the defendant gave it for strategic reasons.... ”). The court may also consider the fact that the defendant was represented by counsel, which, barring an ineffective assistance claim, supports a conclusion that the defendant’s waiver was informed and strategic. See DeRobertis, 715 F.2d at 1182 (“The purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights.” (quoting Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)) (internal omissions omitted)). Alcala’s alleged language difficulties and level of education might be troubling if he represented himself pro se or if he alleged ineffective assistance of counsel. He did not do so, however, and he makes no such charge against his original trial counsel. These elements of his background, of which the district court was aware during his plea colloquy, do not defeat our presumption that his responses to the court’s inquiries were truthful, see Koons, 639 F.3d at 352; Bridgeman v. United States, 229 F.3d 589, 592 (7th Cir.2000). Nor does the fact that Alcala’s responses were largely “yes” or “no,” without more, defeat this presumption. See United States v. Messino, 55 F.3d 1241, 1253-54 (7th Cir.1995) (holding that the defendant was not deprived of meaningful plea colloquy because he was asked only questions requiring “yes” or “no” answers). While we stress that narrative responses in a plea colloquy are superior to inquiries from the" }, { "docid": "4819680", "title": "", "text": "court that elicit “yes” or “no” answers, see, e.g., United States v. Groll, 992 F.2d 755, 760 n. 7 (7th Cir.1993) (“[S]imple affirmative or negative answers to the court’s rote interrogatories give us pause in finding that [the defendant] entered her plea knowingly.”); United States v. Fountain, 777 F.2d 351, 356 (7th Cir.1985) (“Simple affirmative or negative answers or responses which merely mimic the indictment or the plea agreement cannot fully elucidate the defendant’s state of mind as required by Rule 11.”), our review of the plea colloquy, the fact that Alcala was represented by counsel, and the fact that Alcala was provided with a translator during the colloquy evince that he comprehended the district court’s inquiries. We similarly find unpersuasive Alcala’s contention that he could not waive his right to a trial and appeal until the district court and his attorney had appraised him of each and every element of a trial. During the colloquy, the district court informed him that, by pleading guilty, he would be giving up his right to a jury trial, including calling witnesses, further presenting his case, and submitting his case to the jury for a determination of his guilt or innocence. He understood that he could choose between being judged by a group of his peers or pleading to the crime and accepting the Government’s support and sentencing recommendations. That understanding, coupled with his lawyer’s advice and the fact that he decided to plead after listening to several Government witnesses testify against him, indicates that his plea and waiver were strategic choices and, thus, valid. See United States v. England, 507 F.3d 581, 586 (7th Cir.2007) (“A court does not have to give the defendant a crash course in criminal law or trial proce dure before a defendant’s waiver of his right to counsel will be voluntary.”); cf. DeRobertis, 715 F.2d at 1182-83 (noting, in evaluating the validity of a defendant’s waiver of his right to a jury trial, that “a defendant who is aware that the choice he faces is between being judged by a group of his fellow citizens or a" }, { "docid": "2248326", "title": "", "text": "filing of it in the record of the case.”); United States v. Boynes, 515 F.3d 284, 286 (4th Cir.2008) (“[Though not a constitutional imperative, i]t is much preferable for a district court to [assure] itself on the record before accepting the defendant’s jury waiver....”); Martin, 704 F.2d at 274 (“We implore the district courts to personally inform each defendant of the benefits and burdens of jury trials on the record prior to accepting a proffered waiver.”); United States v. Rodriguez, 888 F.2d 519, 527 (7th Cir.1989) (“[While not constitutionally required, a colloquy] should occur before the court accepts a waiver of the right to trial by jury.”); Cochran, 770 F.2d at 853 (“Like the Sixth Circuit, we ‘implore’ district courts to [conduct a waiver colloquy.]”); United States v. Robertson, 45 F.3d 1423, 1432 (10th Cir.1995) (“In recognition of the importance of a colloquy between the defendant and district court regarding the decision to waive the right to trial by jury, we join those circuits that ... strongly urge district courts personally to inform each defendant of the nature of jury trials on the record before accepting a proffered waiver.”); United States v. David, 511 F.2d 355, 361 (D.C.Cir.1975) (“Many courts — including our own — have indicated that trial judges would be well-advised to directly question the defendant in all cases to determine the validity of any proffered waiver of jury trial.”). The District Court is, of course, free to fashion the colloquy in the way it sees fit. See Anderson, 704 F.2d at 119 (“[W]e shall continue to rely on the district courts to employ the means most appropriate to a particular case in order to [e]nsure that a defendant’s waiver of the right to a trial by jury is knowingly and intelligently made.”). Courts may gain guidance from Martin, which explains: At a minimum, a defendant should be informed that a jury is composed of 12 members of the community, he may participate in the selection of jurors, the verdict of the jury must be unanimous, and that a judge alone will decide guilt or innocence should he" }, { "docid": "11266380", "title": "", "text": "Indeed, it appears that Milone “understood that the choice confronting him was, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge,” Williams v. DeRobertis, 715 F.2d at 1180, and that for prudential reasons he elected the latter course. “In addition, the fact that petitioner was represented by competent counsel throughout the proceedings further indicates that he knowingly waived his right.” United States ex rel. Wandick v. Chrans, 869 F.2d 1084, 1088 (7th Cir.1989). The record indicates that Mione's waiver of the right to a jury trial was knowing and intelligent. With respect to the ineffective assistance claim, counsel's recommendation to waive a jury trial was a reasonable trial strategy. Counsel's stated concern was that the jury would have trouble understanding the expert testimony. Under the circumstances counsel's performance was not unconstitutionally deficient. Finally, Mione notes that he did not testify in his own behalf at trial. This argument goes both to Milone's Fourteenth Amendment right to testify in his own behalf, Rock v. Arkansas, 483 U.S. 44, 51, 107 S.Ct. 2704, 2709, 97 L.Ed.2d 37 (1987), and to ineffective assistance of counsel. With respect to the Fourteenth Amendment claim, Mione argues that \"nowhere in the record is there a suggestion that he knowingly and intelligently waived his constitutional right to testify in his own behalf.\" H. 138 at 22. The state court had no affirmative duty, however, to determine whether Milone's silence was the result of a knowing and voluntary decision not to testify. United States v. Brimberry, 961 F.2d 1286, 1290 (7th Cir.1992). The fact that the record is barren of evidence in this regard, therefore, does not support an inference that Mi-lone's silence was the product of anything other than a knowing and voluntary waiver. Moreover, as in Brimberry, Milone does not allege that he \"did not know [he] could testify, that [he] wanted to testify, or that [his] attorney prevented [him] from testifying.\" Id. at 1289. He merely asserts that his attorney advised him not to" }, { "docid": "7642671", "title": "", "text": "of Jury Trial A defendant “must be competent to waive the jury right, and the waiver must in fact be voluntary, knowing, and intelligent.” Christensen, 18 F.3d at 824. Federal Rule of Criminal Procedure 23(a) allows criminal defendants to waive their constitutional right to a jury trial if the waiver is made in writing and has the approval of the government and of the court. Fed.R.Crim.P. 23(a). This Court has also held that in “cases where the defendant’s mental or emotional state is a substantial issue,” the district court must conduct “an in-depth colloquy which reasonably assures the court that under the particular facts of the case, the signed waiver was voluntarily, knowingly, and intelligently made.” Id. at 825-26. This must include telling the defendant: “(1) twelve members of the community compose a jury; (2) the defendant may take part in jury selection; (3) jury verdicts must be unanimous; and (4) the court alone decides guilt or innocence if the defendant waives a jury trial.” Id. at 825. Preston complied with Federal Rule of Criminal Procedure 23(a) by waiving his right to a jury trial in writing and with the approval of the government and the court. The judge conducted an in-depth colloquy in which he discussed with Preston each of the four aforementioned points, had Preston explain each, and made sure that Preston understood them all. Preston’s argument that the court was required to comply with Federal Rule of Criminal Procedure Rule 11, which sets forth necessary procedural steps for a defendant accepting a guilty plea, has no legal basis because Preston did not plead guilty. Preston’s waiver of his jury right was voluntary, knowing, and intelligent. C. Waiver of Right to Confrontation “[T]he accused may waive his right to ... confrontation and ... the waiver of this right may be accomplished by the accused’s counsel as a matter of trial tactics or strategy.” Wilson v. Gray, 345 F.2d 282, 286 (9th Cir.1965). At trial, Preston and his attorney agreed to admit TD’s recorded statement in lieu of having TD testify in person, and he argues that this stipulation" }, { "docid": "22866420", "title": "", "text": "273 (citation omitted). The statement that this knowledge is sufficient is not, of course, equivalent to a statement that it is constitutionally required. In fact, the Seventh Circuit has held that a defendant who “understood that the choice confronting him was, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge” had knowingly and intelligently waived his right to trial by jury. United States ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1180 (7th Cir.1983), cert. denied, 464 U.S. 1072, 104 S.Ct. 982, 79 L.Ed.2d 219 (1984). Nevertheless, because of the importance of the right to a jury trial, the Seventh Circuit has elected to exercise its supervisory powers over the district courts by requiring that they explain to criminal defendants the following attributes of a jury trial: (1) that a jury is composed of twelve members of the community, (2) that the defendant may participate in the selection of jurors, (3) that the verdict of the jury must be unanimous, and (4) that if the defendant waives a jury trial, the judge alone will determine guilt or innocence. DeRobertis, 715 F.2d at 1178; see United States v. Delgado, 635 F.2d 889 (7th Cir.1981), and United States v. Scott, 583 F.2d 362 (7th Cir.1978). In Martin, we specifically declined to join the Seventh Circuit in exercising our supervisory powers on this issue. We explained that “[w]e are confident that such a rule will be unnecessary since district courts will take a few moments and inform defendants of their jury trial right on the record. These few minutes will avoid the troublesome, time consuming task” confronting courts of appeals addressing the issue without the benefit of a fully developed record. Martin, 704 F.2d at 275 (emphasis in original). Other circuits have joined us in this request. See United States v. Cochran, 770 F.2d 850, 852 (9th Cir.1985) (listing cases). While the district court failed to conduct the suggested colloquy in this action, the record does not disclose any evidence that Sammons" }, { "docid": "13109303", "title": "", "text": "explicitly stated that there is no constitutional requirement for the trial court to conduct a colloquy with the defendant pri- or to a jury waiver. Id. at 274-75. In Sammons, this court considered the Martin passage and expressly stated that the elements of a knowing jury waiver outlined therein are not constitutionally required. See Sammons, 918 F.2d at 597. Specifically, the Sammons court stated: The statement that this knowledge is sufficient is not, of course, equivalent to a statement that it is constitutionally required. In fact, the Seventh Circuit has held that a defendant who “understood that the choice confronting him was, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge” had knowingly and intelligently waived his right to trial by jury. Id. (emphasis in original). The court went on to hold that “[w]hile the district court failed to conduct the suggested colloquy in this action, the record does not disclose any evidence that Sammons was so unaware of the rudimentary elements of trial by jury that his waiver cannot stand.” Id. The district court erred in treating the dicta in Martin as setting forth a statement of constitutional law. See Sowell, 2001 WL 1681142, at *15. (“The Sixth Circuit has held that in order for a jury-waiver to be knowing and intelligent as a matter of constitutional law, the record must reflect at a bare minimum the following understandings on the part of the defendant: that the jury is composed of twelve members of the community, that the defendant may participate in the selection of the twelve jurors, that any verdict rendered by the jury must be unanimous, and that a judge alone will decide guilt or innocence if a jury trial is waived.” (emphasis added)). The district court added that “[bjoth Sammons and Martin require that a defendant be aware of and understand that any verdict returned by a jury must be unanimous.” Id. Sammons does not support that proposition. Rather, the Sammons court merely quoted Martin’s" }, { "docid": "22866419", "title": "", "text": "must be voluntary, knowing and intelligent. Id. at 271; see also United States ex rel. McCann v. Adams, 320 U.S. 220, 64 S.Ct. 14, 88 L.Ed. 4 (1943); Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930); United States ex rel. Wardick v. Chrans, 869 F.2d 1084 (7th Cir.1989); United States v. Anderson, 704 F.2d 117 (3d Cir.1983). Interpreting the “knowing and intelligent” requirement in Martin, we held that a “technical knowledge of the jury trial right” is not required for a waiver to be effective. We explained that: A defendant is sufficiently informed to make an intelligent waiver if he was aware that a jury is composed of 12 members of the community, he may participate in the selection of the jurors, the verdict of the jury must be unanimous, and that a judge alone will decide guilt or innocence should he waive his jury trial. Knowledge of these essential attributes is generally sufficient to enable a defendant to make a knowing and intelligent decision. Martin, 704 F.2d at 273 (citation omitted). The statement that this knowledge is sufficient is not, of course, equivalent to a statement that it is constitutionally required. In fact, the Seventh Circuit has held that a defendant who “understood that the choice confronting him was, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge” had knowingly and intelligently waived his right to trial by jury. United States ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1180 (7th Cir.1983), cert. denied, 464 U.S. 1072, 104 S.Ct. 982, 79 L.Ed.2d 219 (1984). Nevertheless, because of the importance of the right to a jury trial, the Seventh Circuit has elected to exercise its supervisory powers over the district courts by requiring that they explain to criminal defendants the following attributes of a jury trial: (1) that a jury is composed of twelve members of the community, (2) that the defendant may participate in the selection of jurors, (3) that the verdict" }, { "docid": "4819677", "title": "", "text": "compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses.” Second, he maintains that court prompted him for “yes or no” answers that, in absence of a narrative, rendered it unable to assess his understanding and competence. In turn, he argues, he could not have knowingly and voluntarily agreed to relinquish his right to appeal, and the waiver is invalid and unenforceable. Although he does not state so specifically, his claim of invalid waiver extends to his waiver’s scope: if he could not understand the provision at all, he could not have understood that his appeal of a motion to withdraw a plea constituted an appeal of his conviction. In short, he did not knowingly, voluntarily give up his right to appeal the district court’s judgment on that particular matter. We disagree. Waiver of the right to appeal is valid when a defendant knowingly and voluntarily relinquishes his right. See Shah, 665 F.3d at 837. In assessing the knowing and voluntary character of a defendant’s waiver, the court should lend particular credence to the defendant’s representations to the court during his plea colloquy, during which he is obligated to tell the truth. See Koons v. United States, 639 F.3d 348, 352 (7th Cir.2011); Hutchings v. United States, 618 F.3d 693, 699 (7th Cir.2010). His waiver is knowing and voluntary if he “understand[s] the choice confronting him and ... understand^] that choice is his to make.” United States ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1182-83 (7th Cir.1983) (discussing waiver of the right to trial by jury); see also United States v. Johnson, 534 F.3d 690 (7th Cir.2008) (“[W]aiver is likely knowing and voluntary if the defendant gave it for strategic reasons.... ”). The court may also consider the fact that the defendant was represented by counsel, which, barring an ineffective assistance claim, supports a conclusion that the defendant’s waiver was informed and strategic. See DeRobertis, 715 F.2d at 1182 (“The purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal" } ]

[ { "docid": "11656680", "title": "", "text": "the more recent cases and the “distinct trend” seems to be one of determining the nature of a garnishment proceeding by federal law. See, generally, Wright, Federal Courts, § 38 (1970) citing Swanson v. Liberty National Ins. Co., 353 F.2d 12 (9th Cir. 1965); Randolph v. Employer Mutual Liability Ins. Co., 260 F.2d 461 (8th Cir. 1958); Stoll v. Hawkeye Cas. Co. of Des Moines, supra. This latter approach is supported by the greater weight of authority and represents, we believe, the better view. Therefore, we hold that under federal law (28 U.S.C. § 1441 et seq.) an Ohio garnishment proceeding is an independent “civil action” and is removable by the garnishee, in this case the United States Postal Service. The second issue concerns the amenability of the United States Postal Service to garnishment proceedings. The plaintiff contends that, since 39 U.S.C. § 401 allows the Postal Service to sue and be sued, it may properly be subject to garnishment proceedings as to the debts of its employees. In support of its argument, the plaintiff relies on F. H. A. v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed.2d 724 (1940), in which the United States Supreme Court held that the Federal Housing Administration was amenable to garnishment proceedings for a debt of an employee under 12 U.S.C. § 1702, which provided that the Administrator could sue or be sued. By analogy, the plaintiff here urges us to extend the holding of Burr to a garnishment proceeding instituted against the Postal Service. On the other hand, the United States contends that Burr can be distinguished' from the present case. In support of its argument, the. United States relies on two district court eases which have held, specifically, that the Postal Service is not subject to garnishment proceedings. Detroit Window Cleaners Local 139 Ins. Fund v. Griffin, 345 F.Supp. 1343 (E.D.Mich.1972); Lawhorn v. Lawhorn, 351 F.Supp. 1399 (S.D.W.Va.1972). In each of these cases, the court cited various factors which made garnishment of the Postal Service distinguishable from garnishment of the F.H.A. These factors included legislative history, the governmental function of" } ]

[ { "docid": "15494734", "title": "", "text": "remanded to state court on the ground of a defect in the removal procedure. 28 U.S.C. § 1447(c). Failure to file a notice of removal within the thirty day limitations period is cause for remand. Capone v. Harris Corp., 694 F.Supp. Ill, 112 (E.D.Pa.1988); Blow v. Liberty Travel, Inc., 550 F.Supp. 375, 375-76 (E.D.Pa.1982). The party seeking removal has the burden of showing that federal subject-matter jurisdiction exists, filing of the notice of removal was timely and that removal is proper. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991); Steel Valley Authority v. Union Switch and Signal Division, Amer. Standard, Inc., 809 F.2d 1006, 1011 (3d Cir.1987), cert. dism’d, 484 U.S. 1021, 108 S.Ct. 739, 98 L.Ed.2d 756 (1988); Capone, 694 F.Supp. at 112. \"The removal statutes ‘are to be strictly construed against removal and all doubts are to be resolved in favor of remand.’ ” Boyer, 913 F.2d at 111 (quoting Steel Valley, 809 F.2d at 1010). b. The Removal Limitations Period Under 12 U.S.C. § 1819 Courts which have considered the issue of whether Section 1446 governs the time for removal pursuant to Section 1819(b)(2)(B) agree that the section does in fact apply. See, e.g., In re Meyerland Co., 910 F.2d 1257, 1264 (5th Cir.1990) (Higginbotham, J., concurring); FDIC v. Loyd, 744 F.Supp. 126, 128 (N.D.Tex.1990); Hunter’s Run, I, Ltd. v. Arapahoe County Public Trustee, 741 F.Supp. 207, 207 (D.Colo.1990); MTech Corp. v. FDIC, 729 F.Supp. 1134, 1136 (N.D.Tex.1990); FDIC v. Taylor, 727 F.Supp. 326, 328 (S.D.Tex.1989); FDIC v. Norwood, 726 F.Supp. 1073, 1075 (S.D.Tex.1989). Section 1819(Fourth) of Title 12 of the United States Code was the predecessor to Section 1819(b)(2)(B). See 12 U.S.C. § 1819(Fourth), amended by FIRREA, Pub.L. No. 101-73, § 209, 103 Stat. 183, 216-17 (codified, as amended, at 12 U.S.C. § 1819(b)(2)(B)). In decisions involving Section 1819(Fourth), courts uniformly held that Section 1446 governed removal. See, e.g., Bowen v. FDIC, 915 F.2d 1013, 1014-15 (5th Cir.1990); Kasai, 913 F.2d at 489; In re Franklin Nat’l Bank Sec. Litig., 532" }, { "docid": "23409592", "title": "", "text": "in dispute concededly functions as an instrumentality of the Federal Government, the burden is on defendant to demonstrate that this court is without jurisdiction to hear the claim. While jurisdiction under the Tucker Act over USPS activities has not been litigated prior to this suit, the case law concerning the relationship between USPS and defendant in other frameworks is largely inconclusive. Compare Detroit Window Cleaners Local 139 Insurance Fund v. Griffin, 345 F. Supp. 1343 (E.D. Mich. 1972), and Lawhorn v. Lawhorn, 351 F. Supp. 1399 (S.D. W.Va. 1972), with White v. Bloomberg, 345 F. Supp. 133 (D. Md. 1972), and Leonard v. United States Postal Service, 360 F. Supp. 449 (D. Mass. 1973), aff'd 489 F. 2d 814 (1974). Thus, meaningful application of our jurisdictional formulae to the present case requires, as defendant urges, consideration of the statutory provisions at hand. The Reorganization Act No compelling indication of Congressional intent concerning defendant’s role as principal to the actions of USPS emerges from the Eeorganization Act’s specific provisions. The statutory pattern is sufficiently clear, however, to demonstrate that defendant has failed to carry its burden of proving, under the circumstances, the United States is not an appropriate party to this suit. Defendant relies too heavily on the theoretical postulate that Congress’ design to establish the Postal Service on a self-supporting basis as an efficient business, see 39 U.S.C. §§ 2002, 2003, 2005, 3621, cast USPS totally out of its predecessor’s niche in the federal establishment. To begin with, the premise is a dubious one. Congress has wide discretion to endow a governmental agency with any combination of powers and immunities as it sees fit. See FHA v. Burr, 309 U.S. 242, 244 (1940); Monolith Portland Midwest Co. v. RFC, 178 F. 2d 854, 858 (9th Cir. 1949), cert. denied, 339 U.S. 932 (1950). Whether a governmental corporation, agency, or other type of instrumentality is administered by sound commercial practices or as a bureaucratic boondoggle need not affect the legal status of the entity. The relevant legislative history indicates that, while Congress was basically concerned with reorienting national postal service on" }, { "docid": "14251736", "title": "", "text": "Cir.1993). We find our holding in KPERS persuasive here and conclude that all claims in a case to which the FDIC is a party have “arising under” federal subject matter jurisdiction. The subsequent dismissal of the claim against the FDIC did not defeat that jurisdiction or withdraw the court’s jurisdiction over the state law claims filed against the other FSA lenders. Because we retain jurisdiction over the latter claims, section 1447(c) does not require that they be remanded to the Missouri Court of Appeals. The homeowners next argue that because the FSA lenders did not join in the FDIC’s motion to remove, the rule of unanimity requires remand. The rule of unanimity ordinarily requires that a case be remanded to the state court from which it was removed unless all defendants join in the motion for removal. 28 U.S.C. § 1446(a); Horton v. Conklin, 431 F.3d 602, 604 (8th Cir.2005). This case was removed under § 1819(b)(2)(B), however, and that statute allows the FDIC to remove any case to which it is a party from state to federal court within ninety days of its becoming a party. The FDIC’s authority to remove under the statute is unilateral: it does not depend upon the consent of other defendants. To read onto § 1819(b)(2)(B) a requirement that all defendants join in the FDIC’s motion for removal would undermine the broad removal power that the statute grants the FDIC. We conclude that the rule of unanimity does not limit the FDIC’s unilateral power of removal under § 1819(b)(2)(B). Accord Franklin Nat’l Bank Sec. Litig. v. Andersen, 532 F.2d 842, 846 (2d Cir.1976). The homeowners argue in the alternative that remand is appropriate as a matter of judicial discretion under 28 U.S.C. § 1441(c). We question the applicability of § 1441(c) in this context since § 1819(b)(2)(B) provides jurisdiction over the state law claims. Even assuming that § 1441(c) were properly invoked here, the threshold for triggering our discretion to remand would not be met. When a case arising under federal law is removed from state court, § 1441(c) affords the federal court discretion" }, { "docid": "852290", "title": "", "text": "“a statute which waives sovereign immunity is not one upon which an action can be founded. Rather, a statute upon which a claim can be founded is one which expressly or impliedly creates a right to relief. * * * Section 659 in no way purports to establish a federal right to garnishment.” In West v. West, 402 F.Supp. 1189 (N.D.Ga.1975), eight wives brought suit in state courts to garnish monies due from the United States to their former husbands. Removal by the Governmént to federal district court was held inappropriate under both 28 U.S.C. § 1441(a) combined with 28 U.S.C.. § 1346, and under 28 U.S.C. § 1442(a)(1). See also to the same effect, as to section 1441 combined with section 1346(a)(2), Wilhelm v. United States Dep’t of Air Force, 418 F.Supp. 162 (S.D.Tex.1976). This Court agrees with the views expressed in Wilhelm, Morrison and West as to section 1441. The applicability of section 1442(a)(1) raises, however, different and more complex issues. Section 1442 provides in part: (a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the-apprehension or punishment of criminals or the collection of the revenue. In West, Judge O’Kelley wrote (at 1190-91): In New Jersey v. Moriarity, 268 F.Supp. 546, 555 (D.N.J.1967), the court traced the development of this section: The series of enactments culminating in Section 1442(a) were initially designed to protect Federal revenue officers from prosecution or civil suit in State court for violation of State law. (Citations omitted.) Removal was restricted to cases where the officers [sic] defense was that no personal liability, civil or criminal, could be attached to his action, since he was only performing his Federal duties." }, { "docid": "17249806", "title": "", "text": "PER CURIAM. These appeals challenge the immunity of the United States Postal Service (USPS) to garnishment procedures to effect judgments in state courts. The Government says: “The United States Postal Service, being an independent establishment of the executive branch and performing a function which only the federal government may perform or delegate is not subject to a garnishment proceeding.” The Government cites as authority for its proposition only two cases, Lawhorn v. Lawhorn, 351 F.Supp. 1399 (S.D.W.Va.1972), and Detroit Window Cleaners Local 139 Insurance Fund v. Griffin et al., 345 F.Supp. 1343 (E.D.Mich.1972). The District Court here followed these cases and quashed the garnishment summons in each case. We find this error and reverse. I. The trilogy of Supreme Court opinions in Keifer & Keifer v. R. F. C., 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784 (1939); F. H. A. v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724 (1940), and R. F. C. v. Menihan Corp., 312 U.S. 81, 61 S.Ct. 485, 85 L.Ed. 595 (1941), control the outcome in this case. In Keifer, the Court laid down the rule that “the government does not become the conduit of its immunity in suits against its agents or instrumentalities merely because they do its work.” Keifer, supra, 306 U.S. at 388, 59 S.Ct. at 517. In F. H. A. v. Burr, supra, first the Court announced the Keifer principle that waivers by Congress of governmental immunity from suit should be liberally construed in the case of federal instrumentalities. Then the Court continued that, in the absence of a contrary showing, “[I]t must be presumed that when Congress launched a governmental agency into the commercial world and endowed it with authority to ‘sue and be sued,’ that agency is not less amenable to judicial process than a private enterprise under the circumstances would be.” Id. 309 U.S. at 245, 60 S.Ct. at 490. Finally, in R. F. C. v. Menihan Corp., supra, the Court applied “the principle that there is no presumption that the agent is clothed with sovereign immunity.” Id. 312 U.S. at 85, 61 S.Ct." }, { "docid": "23127490", "title": "", "text": "state court proceedings. For example, the removal statute which applies in cases involving the Federal Reserve banks (agencies which do not insure customers’ deposits), unlike the removal statutes applying to the FDIC and FSLIC (agencies which do insure customers’ deposits), specifically limits removal to instances where the Federal Reserve bank is a “defendant” in the state court. Compare 12 U.S.C. § 632 (removal where Federal Reserve bank is “defendant”) with 12 U.S.C. § 1819(4) (removal of any action where FDIC is a party) and 12 U.S.C. § 1730(k) (removal of any action where FSLIC is a party). See note 7 supra. Perhaps Congress had in mind the necessity, insofar as these insuring agencies were concerned, of avoiding the “exercises in procedural dialectics,” as Mr. Justice Frankfurter put it, Chicago, Rock Island & Pacific Railroad Co. v. Stude, 346 U.S. 574, 586, 74 S.Ct. 290, 297, 98 L.Ed. 317, 329 (1954) (dissenting opinion), in which the courts sometimes had engaged relative to abstruse removal questions. See, e. g., Chicago, Rock Island & Pacific Railroad Co. v. Stude, supra (when must a party be realigned as a plaintiff); Bondurant v. Watson, 103 U.S. 281, 26 L.Ed. 447 (1880) (when is a claim ancillary to a pending state court case); FSLIC v. Quinn, supra (when is a counterclaim not a counterclaim). Appellant’s principal argument against this construction of the statute is that under § 1819(4) the FDIC may remove only “by following any procedure for removal now or hereafter in effect . . The claim is that the only “procedure for removal” is that set forth in 28 U.S.C. § 1446, subparagraph (a) of which permits removal only by a defendant or defendants. See also Conner v. Salzinger, 457 F.2d 1241, 1243 (3d Cir. 1972); Sheets v. Shamrock Oil & Gas Corp., 115 F.2d 880 (5th Cir.), aff’d, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); 1A J. Moore, Federal Practice ¶ 0.157[7], at 114 (1974); 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3731, at 718-19 (1976). In light of what we have said above," }, { "docid": "18441789", "title": "", "text": "Corp., 651 F.2d 355, 358-59 (5th Cir.1981); Federal Deposit Insurance Corp. v. Kelly, 682 F.Supp. 427 (S.D.Ia.1988); McVay v. Western Plains Service Corp., 823 F.2d 1395 (10th Cir.1987). The state court did not err in permitting the FDIC to join with plaintiff Madison Bank in their efforts to collect on the promissory notes. Simpson’s remaining arguments in support of his motion to remand are also without merit. He argues that pursuant to 28 U.S.C. § 1446, only defendants are permitted to remove an action. However, with one exception which is not applicable here, 12 U.S.C. § 1819 (fourth) permits the FDIC to remove an action to federal court whenever the Corporation is a party to an action. The fact that the FDIC is aligned as a plaintiff in this action does not prevent it from properly removing the action. E.g., In Re Franklin National Bank Securities Litigation, 532 F.2d 842, 846 (2nd Cir.1976); FDIC v. Crowe, 652 F.Supp. 740, 741 (N.D.Tex.1984). Simpson argues that the removal was untimely. He contends that the thirty-day period for filing began to run when Madison Bank assigned the notes to the FDIC, or at the latest, when the FDIC filed its motion to join on March 28, 1988. It is clear that the FDIC in its corporate capacity was not a “party” and was not entitled to remove the action until it was formally joined as a party plaintiff by the state court on May 31, 1988. See Mo.R.Civ.P. 52.13(c). The removal petition was timely filed. Simpson also argues that the FDIC waived its right to remove by filing its motion for joinder and appearing for the hearing in the state court. This is clearly incorrect. As noted above the FDIC could not have removed the action until it had formally become a party to the state court action. The FDIC’s conduct in the state court was not inconsistent with the intent to remove. See, e.g., Genie Machine Products, Inc. v. Midwestern Machinery Co., 367 F.Supp. 897, 899 (W.D.Mo.1974). Nor is the FDIC estopped from removing the action because of its earlier conduct in" }, { "docid": "15494735", "title": "", "text": "Removal Limitations Period Under 12 U.S.C. § 1819 Courts which have considered the issue of whether Section 1446 governs the time for removal pursuant to Section 1819(b)(2)(B) agree that the section does in fact apply. See, e.g., In re Meyerland Co., 910 F.2d 1257, 1264 (5th Cir.1990) (Higginbotham, J., concurring); FDIC v. Loyd, 744 F.Supp. 126, 128 (N.D.Tex.1990); Hunter’s Run, I, Ltd. v. Arapahoe County Public Trustee, 741 F.Supp. 207, 207 (D.Colo.1990); MTech Corp. v. FDIC, 729 F.Supp. 1134, 1136 (N.D.Tex.1990); FDIC v. Taylor, 727 F.Supp. 326, 328 (S.D.Tex.1989); FDIC v. Norwood, 726 F.Supp. 1073, 1075 (S.D.Tex.1989). Section 1819(Fourth) of Title 12 of the United States Code was the predecessor to Section 1819(b)(2)(B). See 12 U.S.C. § 1819(Fourth), amended by FIRREA, Pub.L. No. 101-73, § 209, 103 Stat. 183, 216-17 (codified, as amended, at 12 U.S.C. § 1819(b)(2)(B)). In decisions involving Section 1819(Fourth), courts uniformly held that Section 1446 governed removal. See, e.g., Bowen v. FDIC, 915 F.2d 1013, 1014-15 (5th Cir.1990); Kasai, 913 F.2d at 489; In re Franklin Nat’l Bank Sec. Litig., 532 F.2d 842, 843 (2d Cir.1976); T & M Dental Lab, Inc. v. First Indus. Bank, 714 F.Supp. 798, 799 (E.D.La.1989); Heafitz v. Interfirst Bank, 711 F.Supp. 92, 94-95 (S.D.N.Y.1989); Yankee Bank for Finance & Savings, FSB v. Hanover Square Associates-One L.P., 693 F.Supp. 1400, 1410 (N.D.N.Y.1988); FDIC v. The Atlantic Org., Inc., 682 F.Supp. 5, 7 (D.P.R.1988). Section 1819(Fourth) contained the language that the FDIC may remove “by following any procedure for removal now or hereafter in effect.” 12 U.S.C. § 1819(Fourth). Consequently, courts looked to the general federal removal statutes because they were the removal procedures then in effect. See In re Franklin, 532 F.2d at 846. With FIRREA, Congress eliminated the language referring to removal procedures in effect. See FIRREA, Pub.L. No. 101-73 at § 209, 103 Stat. at 216-17. Significantly, Congress did not replace that language with any other language indicating the proper procedures for removal. In this regard, “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts" }, { "docid": "3003623", "title": "", "text": "also a motion to intervene it is reasonable to interpret such findings as an addition of FDIC as a party, on the Court’s own motion, pursuant to Rule 21. Id. At first glance, Farina seems directly applicable here. Closer scrutiny re veals, however, that this court cannot adopt, wholesale, the Farina court’s reasoning. In particular, it light of the Second Circuit’s holding that Rule 21 is not available to “deal with problems of defective jurisdiction,” Kerr v. Compagnie De Ul-tramar, 250 F.2d 860, 864 (2d Cir.1958), this court cannot rely upon that rule, as the Farina Court suggested, as a procedural device for including the FDIC as a plaintiff. Nonetheless, after Farina, intervention may be accomplished without formal motion. And this court will, in its discretion, consider the removal petition as a motion to intervene under Fed.R.Civ.P. 24. In so doing, the court avoids the absurd result of remanding these actions back to state court on the basis that there is no subject matter jurisdiction because the FDIC has not been made a party; and then having the substitution motion granted in state court, and having these cases removed again. B. Removal Procedure 1. Timeliness The technical aspects of removal under section 1819 (Fourth) are governed by 28 U.S.C. § 1446(b) Franklin National Bank Securities Litigation v. Andersen, 532 F.2d 842, 844 (2d Cir.1976). Section 1446(b) provides, in relevant part: If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. 28 U.S.C. § 1446(b) (West 1973) (emphasis added). Defendants contend that assuming ar-guendo that this court has subject matter jurisdiction over these actions, remand is authorized nonetheless because plaintiff did not timely file its petition for removal within 30 days as mandated by section 1446(b). Plaintiff responds that even if it was not timely under section 1446(b), it did not" }, { "docid": "22298819", "title": "", "text": "federal and non-federal claims, under § 1441(a)). Moreover, the same or similar language in other limited removal provisions, available only to particular types of defendants as is § 1441(d), has consistently been construed and applied to effect the removal of the entire action in multi-party suits. For instance, this court has previously held that when a federal officer exercises his prerogative under 28 U.S.C. § 1442(a)(1) to remove any “civil action” commenced against him in state court, the entire case against all defendants, federal and non-federal, is removed to federal court regardless of the wishes of his co-defendants. Fowler v. Southern Bell Telephone & Telegraph Co., 343 F.2d 150, 152 (5th Cir. 1965). Accord, e. g., Murphy v. Kodz, 351 F.2d 163, 165-67 (9th Cir. 1965); Bottos v. Avakian, 477 F.Supp. 610, 611 n. 3 (N.D.Ind.1979); Howes v. Childers, 426 F.Supp. 358, 359 (E.D.Ky.1977). The same power of removal of the entire cause of action against all parties has been recognized in cases of removal of “civil actions” in tort against federal employees pursuant to 28 U.S.C. § 2679(d). 14 C. Wright, A. Miller & E. Cooper, supra § 3727, at 693. See, e. g., Darnell v. Starks, 258 F.Supp. 31 (D.Ore. 1966). Applications of other removal provisions are similarly consistent with our interpretation of § 1441(d). See Farina v. Mission Investment Trust, 615 F.2d 1068 (5th Cir. 1980) (sanctioning removal of entire action against all defendants in a suit removed by the FDIC pursuant to its sole prerogative provided in 12 U.S.C. § 1819(4)); In re Franklin National Bank Securities Litigation v. Andersen, 532 F.2d 842, 846 (2d Cir. 1976) (same). From the foregoing, we conclude that Congress intended that § 1441(d), when invoked by a “foreign state” defendant, should operate to remove the entire action pending in state court against all defendants, private and domestic, as well as the foreign sovereign. Accordingly, we find that when Dominicana removed the Arangos’ claims against it to federal court under § 1441(d), it carried with it the remaining parties in the state proceeding. Since Guzman, Trailways Travel and Sheraton were, therefore," }, { "docid": "22863571", "title": "", "text": "1977); Bank of Virginia v. Tompkins, 434 F. Supp. 787 (ED Va. 1977); United Virginia Bank/National v. Eaves, 416 F. Supp. 518 (ED Va. 1976); Iowa-Des Moines National Bank v. United States, 414 F. Supp. 1393 (SD Iowa 1976); Colonial Bank v. Broussard, 403 F. Supp. 686 (ED La. 1975). But see Nolan v. Woodruff, 68 F. R. D. 660 (DC 1975); Drs. Macht, Podare & Associates, Inc. v. Girton, 392 F. Supp. 66 (SD Ohio 1975); Lawhorn v. Lawhorn, 351 F. Supp. 1399 (SD W. Va. 1972); Detroit Window Cleaners Local 139 Insurance Fund v. Griffin, 345 F. Supp. 1343 (ED Mich. 1972). See H. R. Rep. No. 91-1104, pp. 5,11-12 (1970); 116 Cong. Rec. 19846 (1970) (remarks of Rep. Corbett); id., at 20226 (remarks of Rep. Udall). Perhaps the clearest practical expression of this intent was Congress’ decision to create a new postal rate structure designed to make the Postal Service self-supporting. See 39 U. S. C. § 3621; H. R. Rep. No. 91-1104, pp. 16-17 (1970). See also National Assn, of Greeting Card Publishers v. United States Postal Service, 462 U. S. 810, 813-814 (1983). In Burr, the Court rejected the argument that the burden of responding to garnishment actions would interfere with its ability to perform its functions. See 309 U. S., at 249. Moreover, the burden upon the Postal Service of responding to the Board’s orders to withhold is no greater than the burden it would face if it had to comply with a similar order issued by a state court, which the Postal Service concedes would not be barred by sovereign immunity. It should be noted that the Postal Service cannot be held liable for honoring the orders to withhold, see Cal. Tax. & Rev. Code Ann. § 18819 (West 1983). Accord, Reconstruction Finance Corp. v. J. G. Menihan Corp., 312 U. S., at 84. See also Federal Land Bank v. Priddy, 295 U. S. 229 (1935) (in order to interpret waiver of sovereign in a practical manner, sue-and-be-sued clause construed to extend to permit prejudgment attachment). In Keifer & Keifer, the Court wrote:" }, { "docid": "23409591", "title": "", "text": "Ct. Cl. 11, 18-19, 132 F. Supp. 454, 458-59 (1955). Most recent and instructive of this line of decisions is National State Bank of Newark v. United States, 174 Ct. Cl. 872, 357 F. 2d 704 (1966), a case involving a contractual undertaking of the Federal Housing Administration in which the court construed the Tucker Act to constitute a “broad” waiver of sovereign immunity by the United States. The key to the Newark holding was that, when a federal instrumentality acts within its statutory authority to carry out defendant’s purposes, the United States submits itself to liability under the Tucker Act wnless “some specific pro vision to the contrary” exists. 174 Ct. Cl. at 877, 357 F. 2d at 707. In common-sense terms, the object in all such jurisdictional disputes is to determine if the agency in question is “doing work of the government.” 174 Ct. Cl. at 879, 357 F. 2d at 708. See Keifer & Keifer v. RFC, supra at 389. We may, then, fairly summarize that, where the agency whose operations are in dispute concededly functions as an instrumentality of the Federal Government, the burden is on defendant to demonstrate that this court is without jurisdiction to hear the claim. While jurisdiction under the Tucker Act over USPS activities has not been litigated prior to this suit, the case law concerning the relationship between USPS and defendant in other frameworks is largely inconclusive. Compare Detroit Window Cleaners Local 139 Insurance Fund v. Griffin, 345 F. Supp. 1343 (E.D. Mich. 1972), and Lawhorn v. Lawhorn, 351 F. Supp. 1399 (S.D. W.Va. 1972), with White v. Bloomberg, 345 F. Supp. 133 (D. Md. 1972), and Leonard v. United States Postal Service, 360 F. Supp. 449 (D. Mass. 1973), aff'd 489 F. 2d 814 (1974). Thus, meaningful application of our jurisdictional formulae to the present case requires, as defendant urges, consideration of the statutory provisions at hand. The Reorganization Act No compelling indication of Congressional intent concerning defendant’s role as principal to the actions of USPS emerges from the Eeorganization Act’s specific provisions. The statutory pattern is sufficiently clear, however," }, { "docid": "15494753", "title": "", "text": "becomes a party. 12 U.S.C. § 1821(d)(12)(A). . It is also appropriate for the court to inquire, sua spottte, whether it has subject matter jurisdiction. Medlin v. Boeing Vertol Co., 620 F.2d 957, 958 & 960 (3d Cir.1980); see also Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991). . Section 1819(b)(2)(B) provides, in pertinent part: ... the [FDIC] may, without bond or security, remove any action, suit, or proceeding from a State court to the appropriate United States district court. 12 U.S.C. § 1819(b)(2)(B). .Section 1819(b)(2)(A) provides, in pertinent part: ... all suits of a civil nature at common law or in equity to which the [FDIC], in any capacity, is a party shall be deemed to arise under the laws of the United States. 12 U.S.C. § 1819(b)(2)(A). . It is interesting to note the incongruity of the FDIC's attempt to avoid application of Section 1446 when its own notice of removal invokes that section. See MTech Corp. v. FDIC, 729 F.Supp. 1134, 1136 (N.D.Tex.1990). . The Resolution Trust Corporation was created by Congress to manage federally insured depository institutions for which a receiver or conservator has been appointed. See 12 U.S.C. § 1441a. . Section 1441(a) provides, in pertinent part: Except as otherwise expressly provided by Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending.... 28 U.S.C. § 1441(a). . Section 1446(a) provides: A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a" }, { "docid": "3003624", "title": "", "text": "then having the substitution motion granted in state court, and having these cases removed again. B. Removal Procedure 1. Timeliness The technical aspects of removal under section 1819 (Fourth) are governed by 28 U.S.C. § 1446(b) Franklin National Bank Securities Litigation v. Andersen, 532 F.2d 842, 844 (2d Cir.1976). Section 1446(b) provides, in relevant part: If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. 28 U.S.C. § 1446(b) (West 1973) (emphasis added). Defendants contend that assuming ar-guendo that this court has subject matter jurisdiction over these actions, remand is authorized nonetheless because plaintiff did not timely file its petition for removal within 30 days as mandated by section 1446(b). Plaintiff responds that even if it was not timely under section 1446(b), it did not waive its right to remove because the filing of the counterclaims against it renewed that right. Nearly all of the moving defendants rely upon Federal Deposit Ins. Corp. v. Klayer, 519 F.Supp. 889 (E.D.Kentucky 1981), in support of their contention that plaintiff's petition for removal was not timely filed here. In Klayer, the court held that the thirty-day time limit set forth in 28 U.S.C. § 1446(b): [Bjegan to run at such time as the removing party, here the plaintiff F.D.I.C., had actual notice of the state proceeding, the nature of it, the issues involved and the parties involved. Id. at 893. The court’s reason for adopting that rule was to insure that the Congressional intent of the earliest possible removal was, in fact, carried out. Id. at 892. In Klayer, the FDIC was actually the named plaintiff in the state court action. Therefore, the court held it had “actual notice” of all the information to determine remova-bility when it filed the state court action; and thus the thirty day time limit began to run" }, { "docid": "23346454", "title": "", "text": "subject matter jurisdiction over the Bu-chners’ claim against the FDIC. Neither is a defect in the removal procedure apparent. Moreover, by their failure timely to move for remand on that basis, the Buchners waived any such defect if one in fact ever existed. As all of the Buchners’ claims against the FDIC are treated as arising under the laws of the United States, the district court’s subject matter jurisdiction over those claims is mandatory so it has no discretion to remand them to state court. For the foregoing reasons, the district court’s order remanding this case to state court is REVERSED. .See 28 U.S.C. § 1446(b) (generally requiring that a notice of removal be filed within 30 days of when the action becomes removable); 12 U.S.C. § 1819(b)(2)(B) (generally requiring the FDIC to remove a case within 90 days of when the suit is filed or the FDIC is substituted as a party). . 28 U.S.C. §§ 1346(b), 2671-80. . 28 U.S.C. § 1442 reads in part: (a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue. . 12 U.S.C. § 1819(b)(2)(C) (\"Appeal of Remand. The [Federal Deposit Insurance] Corporation may appeal any order of remand entered by any United States district court.\"). . See 28 U.S.C. § 1446; 12 U.S.C. § 1819(b)(2)(B) (special removal provision for the FDIC). . 28 U.S.C. § 1447(c); Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1546 (5th Cir.), cert. denied, — U.S. —, 112 S.Ct. 430, 116 L.Ed.2d 449 (1991). . E.g. Baris, 932 F.2d at 1546. . 12 U.S.C. § 1819(b)(2)(A). . 28 Ü.S-C. § 1331. ." }, { "docid": "22863570", "title": "", "text": "v. United, States Postal Service, 675 F. 2d 756, 758 (CA5 1982); Portmann v. United States, 674 F. 2d 1155, 1168 (CA7 1982); Associates Financial Services of America, Inc. v. Robinson, 582 F. 2d 1 (CA5 1978) (per curiam); Beneficial Finance Co. of New York, Inc. v. Dallas, 571 F. 2d 125 (CA2 1978); General Electric Credit Corp. v. Smith, 565 F. 2d 291 (CA4 1977) (per curiam); Goodman’s Furniture Co. v. United States Postal Service, 561 F. 2d 462 (CA3 1977); May Department Stores Co. v. Williamson, 549 F. 2d 1147 (CA8 1977); Standard Oil Division v. Starks, 528 F. 2d 201 (CA7 1975) (per curiam); Kennedy Electric Co. v. United States Postal Service, 508 F. 2d 954, 957 (CA10 1974); Butz Engineering Corp. v. United States, 204 Ct. Cl. 561, 566-567, 499 F. 2d 619, 621-622 (1974); Milner v. Bolger, 546 F. Supp. 375 (ED Cal. 1982); Lutz v. United States Postal Service, 538 F. Supp. 1129, 1132 (EDNY 1982); Lincoln National Bank & Trust Co. v. Marotta, 442 F. Supp. 49 (NDNY 1977); Bank of Virginia v. Tompkins, 434 F. Supp. 787 (ED Va. 1977); United Virginia Bank/National v. Eaves, 416 F. Supp. 518 (ED Va. 1976); Iowa-Des Moines National Bank v. United States, 414 F. Supp. 1393 (SD Iowa 1976); Colonial Bank v. Broussard, 403 F. Supp. 686 (ED La. 1975). But see Nolan v. Woodruff, 68 F. R. D. 660 (DC 1975); Drs. Macht, Podare & Associates, Inc. v. Girton, 392 F. Supp. 66 (SD Ohio 1975); Lawhorn v. Lawhorn, 351 F. Supp. 1399 (SD W. Va. 1972); Detroit Window Cleaners Local 139 Insurance Fund v. Griffin, 345 F. Supp. 1343 (ED Mich. 1972). See H. R. Rep. No. 91-1104, pp. 5,11-12 (1970); 116 Cong. Rec. 19846 (1970) (remarks of Rep. Corbett); id., at 20226 (remarks of Rep. Udall). Perhaps the clearest practical expression of this intent was Congress’ decision to create a new postal rate structure designed to make the Postal Service self-supporting. See 39 U. S. C. § 3621; H. R. Rep. No. 91-1104, pp. 16-17 (1970). See also National Assn, of Greeting" }, { "docid": "18441788", "title": "", "text": "FDIC as a plaintiff because Madison Bank’s assignment of its interest in the four notes to the FDIC was improper. Simpson contends that the FDIC is authorized only to acquire the assets of an insured bank which is insolvent or in danger of closing. See, e.g., 12 U.S.C. § 1823(c). Defendant’s argument is without merit. The transfer of the participation interests by the FDIC to the FDIC in its corporate capacity was a proper exercise of authority pursuant to 12 U.S.C. § 1823. At that point the FDIC in its corporate capacity had purchased a valuable asset and it had the right and obligation to protect its interest in that asset. The FDIC may “exercise ... all powers specifically granted ... and such incidental powers as shall be necessary to carry out the powers so granted.” 12 U.S.C. § 1819 (seventh). The transfer and receipt by the FDIC of the legal title of the four notes by the FDIC was a proper exercise of the FDIC's power. See Chatham Ventures, Inc. v. Federal Deposit Insurance Corp., 651 F.2d 355, 358-59 (5th Cir.1981); Federal Deposit Insurance Corp. v. Kelly, 682 F.Supp. 427 (S.D.Ia.1988); McVay v. Western Plains Service Corp., 823 F.2d 1395 (10th Cir.1987). The state court did not err in permitting the FDIC to join with plaintiff Madison Bank in their efforts to collect on the promissory notes. Simpson’s remaining arguments in support of his motion to remand are also without merit. He argues that pursuant to 28 U.S.C. § 1446, only defendants are permitted to remove an action. However, with one exception which is not applicable here, 12 U.S.C. § 1819 (fourth) permits the FDIC to remove an action to federal court whenever the Corporation is a party to an action. The fact that the FDIC is aligned as a plaintiff in this action does not prevent it from properly removing the action. E.g., In Re Franklin National Bank Securities Litigation, 532 F.2d 842, 846 (2nd Cir.1976); FDIC v. Crowe, 652 F.Supp. 740, 741 (N.D.Tex.1984). Simpson argues that the removal was untimely. He contends that the thirty-day period for" }, { "docid": "15494736", "title": "", "text": "F.2d 842, 843 (2d Cir.1976); T & M Dental Lab, Inc. v. First Indus. Bank, 714 F.Supp. 798, 799 (E.D.La.1989); Heafitz v. Interfirst Bank, 711 F.Supp. 92, 94-95 (S.D.N.Y.1989); Yankee Bank for Finance & Savings, FSB v. Hanover Square Associates-One L.P., 693 F.Supp. 1400, 1410 (N.D.N.Y.1988); FDIC v. The Atlantic Org., Inc., 682 F.Supp. 5, 7 (D.P.R.1988). Section 1819(Fourth) contained the language that the FDIC may remove “by following any procedure for removal now or hereafter in effect.” 12 U.S.C. § 1819(Fourth). Consequently, courts looked to the general federal removal statutes because they were the removal procedures then in effect. See In re Franklin, 532 F.2d at 846. With FIRREA, Congress eliminated the language referring to removal procedures in effect. See FIRREA, Pub.L. No. 101-73 at § 209, 103 Stat. at 216-17. Significantly, Congress did not replace that language with any other language indicating the proper procedures for removal. In this regard, “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statue without change.” Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978) (citations omitted). As well, “if Congress intends for legislation to change the judicial interpretation of a judicially created concept, it makes that intent specific.” Midlantic Nat’l Bank v. New Jersey Dep’t of Environmental Protection, 474 U.S. 494, 501, 106 S.Ct. 755, 759, 88 L.Ed.2d 859 (1986). In this situation, Congress left a lacuna in the FIRREA as to the procedure for removal. Even though Section 1819 was not re-enacted verbatim, it is presumed Congress was aware of the way courts had applied Section 1446 to Section 1819(Fourth). Absent any indication otherwise, it is also presumed Congress intended that a Section 1819(b)(2)(B) removal should be governed by 28 U.S.C. § 1446. The FDIC has failed to demonstrate Congress intended to eliminate the thirty day limitation. Plainly, had Congress wanted to, it could have done so. For example, Section 1819 diverges from the general federal removal statutes in that Section 1819 allows removal by the FDIC when it" }, { "docid": "13403409", "title": "", "text": "First Re-publicBank Dallas, N.A. is a common abbreviation among federally chartered banks for “National Association.” It is apparent that the FDIC is appearing as a receiver for a national bank. Consequently, this Court has subject matter jurisdiction pursuant to 12 U.S.C. § 1819, and removal was not improper because this Court lacked jurisdiction. B. The Timeliness of Removal As noted above, the FDIC, as receiver for an insolvent national bank, has the right to remove any civil state action involving such a bank to federal court under 12 U.S.C. § 1819. The procedure for removal is embodied in 28 U.S.C. § 1446(b). Section 1446(b) provides: The petition for removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading.... If the case stated by the initial pleading is not removable, a petition for removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which has become removable. The issue here is when the thirty day time period began to run. Plaintiff initially argues that the time period began to run in July, 1988, when the FDIC first had actual knowledge that the action was removable. Section 1446(b) expressly provides however, that only a written instrument can trigger the thirty day period. See Riggs v. Continental Baking Co., 678 F.Supp. 236, 238 (N.D.Cal.1988); Smith v. International Harvester Co., 621 F.Supp. 1005, 1007 (D.Nev.1985); see also Interior Glass Services v. FDIC, 691 F.Supp. 1255, 1257 (D.Alaska 1988) (“prior knowledge of a case in which [the FDIC] may or should become a party cannot suffice” to trigger the thirty day period). Knowledge in July, 1988 did not commence running of the thirty day period. Plaintiff next argues that an August 24, 1988 letter to the state court from First RepublicBank’s attorneys, noting that the FDIC had been appointed as a receiver, was the first" }, { "docid": "1724337", "title": "", "text": "statutory language. See H.Rep. No. 54(1), 101st Cong., 1st Sess. 362 (1989), U.S.Code Cong. & Admin.News 1989, pp. 86, 158. . 12 U.S.C. § 1441a(1)(3) explicitly authorizes appeals of remand orders, which are ordinarily barred by 28 U.S.C. § 1447(d). See Thermtron Prods. v. Hermansdorfer, 423 U.S. 336, 345-52, 96 S.Ct. 584, 590-93, 46 L.Ed.2d 542 (1976). . We also note that FIRREA does not restrict the venues in which RTC may initiate suits (a fact that has prompted at least one court to hold that RTC may successfully move to transfer a case to a venue to which it could not have removed the case—see Piekarski v. Home Owners Savings Bank, 743 F.Supp. 38, 43 (D.D.C. 1990). We find it unlikely that Congress intended to narrow the choice of venue in cases in which RTC removes to federal court but not in those cases initiated by the Corporation. The likelihood that Congress intended to vary the available venues seems particularly small in light of federal court decisions stating that the FDIC and FSLIC (and presumably RTC as FSLIC's successor) can remove cases to federal court regardless of their status as plaintiff or defendant. See, e.g., Beighley v. FDIC, 868 F.2d 776, 779 n. 6 (5th Cir.1989); In re FSLIC, 837 F.2d 432, 434-36 (11th Cir.1988); Franklin Nat'l Bank Securities Litigation v. Andersen, 532 F.2d 842, 845 (2d Cir.1976); FSLIC v. Quinn, 419 F.2d 1014, 1019 (7th Cir.1969). . We recognize that our interpretation of § 1441a(l)(3) conflicts with the views of several district courts that have addressed this question. See, e.g., Hellon & Assocs. v. Phoenix Resort Corp., 755 F.Supp. 280, 283-84 (D.Ariz.1990); Piekarski v. Home Owners Savings Bank, 743 F.Supp. 38, 41 (D.D.C.1990); Philpott v. Resolution Trust Corp., 739 F.Supp. 380 (N.D.Ill.1990); Matrix Ski Corp. v. FDIC, 734 F.Supp. 763, 765 (N.D.Tex.1990); RTC v. Key, 733 F.Supp. 1086, 1091 (N.D.Tex.1990); Security Homestead Ass'n v. Eitmann, 1990 WL 124881 (E.D.La.). In Philpott, the district court recognized that \"any case involving Resolution Trust [is] removable to federal court pursuant to 28 U.S.C. § 1441.” 739 F.Supp. at 386. It nevertheless" } ]

[ { "docid": "22627894", "title": "", "text": "the Guidelines because they were too old. U.S.S.G. § 4A1.2(e). Similarly, Amezeua’s law enforcement contacts did not score under the Guidelines. At sentencing, the judge stated that he had read Amezeua’s sentencing memoran dum and the Presentence Report, which discussed Amezcua’s background. The Report noted Amezcua’s extensive family network around El Centro, California, his absence from Mexico since he was two years old, his work experience as an agricultural worker in the fields of California and as a handyman in the community, and his history of alcohol and drug abuse. The district judge determined that the Guidelines range for a defendant with Amezcua’s offense level (22) and criminal history category (II) was 46 to 57 months, followed by a term of 2 to 3 years under supervised release. Amezcua objected to the application of the 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) on the ground that neither of his 1981 convictions qualified as a “crime of violence.” He also challenged the reasonableness of the proposed Guidelines sentence in light of his personal history and characteristics. At sentencing, the district judge noted that the Guidelines are merely advisory and that Amezcua’s 1981 conviction qualified as a crime of violence under Section 2L1.2(b)(l)(A)(ii). After discussing Amezcua’s uncharged law enforcement contacts and his prior convictions, and the statutory sentencing factors under 18 U.S.C. § 3553(a), the district judge imposed a sentence of 52 months imprisonment, followed by three years of supervised release. Amezcua appeals. DISCUSSION Our “appellate review of sentencing decisions is limited to determining whether they are ‘reasonable.’ ” Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). In conducting this inquiry, we review the district court’s sentencing decision for an abuse of discretion. Id. at 600. “[O]nly a procedurally erroneous or substantively unreasonable sentence will be set aside.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). “[W]e first consider whether the district court committed significant procedural error, then we consider the substantive reasonableness of the sentence.” Id. (citing Gall, 128 S.Ct. at 597). Procedural Reasonableness In his only procedural challenge, Amezcua contends" } ]

[ { "docid": "4584136", "title": "", "text": "he would lose his battle with cancer. Gonzalez was indicted for, and pled guilty to, one count of illegal reentry subsequent to an aggravated felony conviction. Because of Gonzalez’s prior drug conviction, the district court applied a 16-level enhancement to his base offense level pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 2L1.2(b)(l)(A)(i) (2012). With this enhancement, the district court adopted a guidelines range of 46-57 months. However, the district court varied downward, and sentenced Gonzalez to 36 months II. Discussion In analyzing a district court sentence, we review first for procedural error and then for substantive reasonableness. United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Because Gonzalez does not argue that the district court committed any procedural error, we look only at the substantive reasonableness of his 36-month sentence. United States v. O’Connor, 567 F.3d 395, 397 (8th Cir.2009). We review the substantive reasonableness of a sentence for abuse of discretion. Feemster, 572 F.3d at 461 (citing Gall, 552 U.S. at 51, 128 S.Ct. 586). A district court abuses its discretion when it “(1) fails to consider a relevant factor that should have received significant weight; (2) gives significant weight to an improper or irrelevant factor; or (3) considers only the appropriate factors but in weighing those factors commits a clear error of judgment.” Id. (quotation omitted). Gonzalez contends that the district court improperly weighed the 18 U.S.C. § 3553(a) sentencing factors in two major respects. First, he argues that the district court gave too much weight to the advisory guidelines — in particular, the USSG § 2L1.2(b) 16-level enhancement. Second, he asserts that the district court gave too little weight to Gonzalez’s significant health problems and family circumstances. From the outset we note “[t]he district court has wide latitude to weigh the § 3553(a) factors in each case and assign some factors greater weight than others in determining an appropriate sentence.” United States v. Bridges, 569 F.3d 374, 379 (8th Cir.2009). A. USSG § 2L1.2(b) 16-Level Enhancement Gonzalez" }, { "docid": "22068093", "title": "", "text": "nature of the offense, the court sentenced Dr. McElwee to a total of 60 months in prison and a $550,000 fine, up to $400,000 of which is to be paid jointly and severally with Mrs. McElwee. Mrs. McElwee was assessed an offense level of 8 with a criminal history category of I, which yielded a Guidelines range of zero to six months. The court ultimately imposed a non-Guidelines sentence of 36 months of imprisonment and a $400,000 fine to be paid jointly and severally with Dr. McElwee. As to Chriss, the district court adopted the factual findings of the PSR and assessed an offense level of 16 with a criminal history category of I, imposing a 21-month sentence of imprisonment followed by three years of supervised release, which was at the bottom of the Guidelines range. Dr. McElwee and Chriss timely appeal their sentences, while Mrs. McElwee appeals both her conviction and her sentence. We have jurisdiction under 28 U.S.C. § 1291. II. At the core of Appellants’ complaints on appeal are their challenges to the substantive reasonableness of their sentences. We review the reasonableness of a defendant’s sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38, 46, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We “first ensure that the district court committed no significant procedural error” and then analyze substantive reasonableness by considering “the totality of the circumstances, granting deference to the district court’s determination of the appropriate sentence based on the § 3553(a) factors, and we may not reverse the district court’s ruling just because we would have determined that an alternative sentence was appropriate.” Id. at 51, 128 S.Ct. 586 (internal quotation marks, citations, and modifications omitted). We now turn to address the issues raised by the Appellants. A. We first consider the claims of Dr. McElwee, who challenges the reasonableness of his prison sentence and the fine imposed by the district court. l. Dr. McElwee first contests the length of the 60-month sentence imposed by the district court. We note, at the outset, that the district court did not commit any" }, { "docid": "23103035", "title": "", "text": "court did not lack jurisdiction to impose the 108-month sentence. B Gerezano also challenges the reasonableness of his sentence. First, he contends that the initial 71-month sentence was substantively unreasonable. Second, Gerezano asserts that the district court’s decision to raise his sentence to 108 months was procedurally and substantively unreasonable. We review a challenged sentence for reasonableness under a two-part test. United States v. Rhine, 637 F.3d 525, 527 (5th Cir.2011). First, we review a sen tence to ensure that the sentencing court did not commit a significant procedural error, “such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Second, we determine whether the challenged sentence was substantively unreasonable by considering “the totality of the circumstances, including the extent of any variance from the Guidelines range.” Rhine, 637 F.3d at 528 (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). Gerezano claims that the initial 71-month sentence was substantively unreasonable because the district court placed significant weight on an improper factor— ie., his arrests for conduct that did not lead to convictions. Gerezano contends that he preserved error on his challenge to the reasonableness of his 71-month sentence by asking the district court why it had “given him so much time” and disagreeing with the court that the sentence was appropriate in his case. However, even if (1) Gerezano’s statements sufficiently raised his claim of substantive sentencing error to allow the district court to correct itself, see United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.2009), and (2) it were possible for Gerezano to perfect an appeal from the district court’s initial formulation of his sentence, the court did not abuse its discretion when setting the initial sentence. When the district court announced its initial formulation of Gerezano’s sentence, it explicitly stated that" }, { "docid": "13148691", "title": "", "text": "sentence, arguing that the nature and timing of his 1991 drug trafficking conviction did not warrant a sixteen-level enhancement, and that the absence of an early disposition program created an unacceptable disparity. The district court agreed that OzunaCabrera’s CHC overrepresented the seriousness of his past crimes and departed downward to a CHC of IV. In light of the absence of an early disposition program, the court also reduced the offense level from 21 to 19, shrinking the GSR to the mandatory 24 months for aggravated identity theft, and 46-57 months for the remaining three counts. The court refused, however, to grant a sentence below the reconfigured sentencing range, imposing a total incarcerative term of 70 months. On appeal, Ozuna-Cabrera mounts both procedural and substantive challenges to his sentence. Procedurally, he contends that the district court, in following the guidelines and applying the sixteen-level enhancement, failed to consider the sentencing factors outlined in 18 U.S.C. § 3553(a). Substantively, he argues that the application of § 2L1.2(b)(l)(A)(i) renders his sentence unreasonable. Given a properly calculated GSR, we review a sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir.2008). Ozuna-Cabrera’s sentence is both procedurally and substantively sound. As to the procedural challenge, although the district court only summarily acknowledged its consideration of § 3553(a), it need not have engaged in an exhaustive analysis of each factor. United States v. Dixon, 449 F.3d 194, 205 (1st Cir.2006) (“[The district court] is not required to address [each § 3553(a) ] faetor[ ], one by one, in some ... rote incantation when explicating its sentencing decision.”). Nor must the court provide a voluminous explanation of its reasoning. Where a sentence is within the applicable guidelines, it “required a lesser degree of explanation than those that fall outside the guideline sentencing range,” and we think that particularly true where, as here, “the sentence is at the very bottom of the Guidelines range.” United States v. Arango, 508 F.3d 34, 48 (1st Cir.2007) (quoting United States v." }, { "docid": "22815577", "title": "", "text": "OPINION IKUTA, Circuit Judge: Jose Maria Vasquez-Cruz appeals from the 24-month prison sentence imposed following his conviction for illegal reentry in violation of 8 U.S.C. § 1326(a). He argues that the district court procedurally erred by failing to analyze whether he was entitled to a downward departure from the applicable sentencing range under the U.S. Sentencing Guidelines and by failing to adequately explain the chosen sentence. He also argues that the district court imposed a substantively unreasonable sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. I On December 15, 2010, the Bureau of Immigration and Customs Enforcement (“ICE”) investigated a report that a previously deported alien was residing unlawfully in Reno, Nevada. The investigation led ICE agents to Vasquez-Cruz, a citizen of Mexico who had previously been removed from the United States on four occasions. On June 3, 2011, Vasquez-Cruz pleaded guilty to unlawful reentry by a deported, removed, or excluded alien in violation of 8 U.S.C. § 1326(a) without a plea agreement. Taking into account Vasquez-Cruz’s five prior criminal convictions for burglary, battery, and battery on a police officer, the presentence report calculated Vasquez-Cruz’s total offense level as 13 and Criminal History Category as IV, which translated to a Guidelines range of 24 to 30 months imprisonment. The presentence report noted that Vasquez-Cruz might be culturally assimilated to the United States because he entered the country for the first time at age 8, but recommended against a downward departure from the Guidelines range on that basis. The report also noted that Vasquez-Cruz had learning disorders and mild retardation, but recommended that the district court not apply a downward variance under 18 U.S.C. § 3553(a) because of Vasquez-Cruz’s criminal history which included four battery convictions. The presentence report then recommended a low-end guideline sentence of 24 months. In response to the presentence report, Vasquez-Cruz filed a sentencing memorandum requesting a sentence of twelve months and one day. Vasquez-Cruz first argued that the district court should grant him a downward variance under 18 U.S.C. § 3553 on account of his cultural assimilation and mental disability. Vasquez-Cruz" }, { "docid": "4967123", "title": "", "text": "sentencing memorandum, the court determined that Jones’s offense level was 27 and that with a criminal history category V, his advisory guideline range was 120 to 150 months’ imprisonment. The court then turned to 18 U.S.C. § 3553(a), listed each factor, and explained its view that a guideline sentence was not sufficient. It discussed the nature and circumstances of the offense, Jones’s criminal history and personal characteristics, the seriousness of the offense, the need to protect the public from Jones, and his risk of recidivism. The court found that the § 3553(a) considerations warranted a 30-month upward variance, and imposed a 15-year sentence. As for Hawkins, the court authored a twenty-six-page sentencing memorandum addressing several enhancements to Hawkins’s base offense level. The court determined that Hawkins’s total offense level was 32. With a criminal history category I, Hawkins’s advisory range was 121 to 151 months. The court then addressed the § 3553(a) factors and imposed a 121-month sentence. Finally, the court explained that even if it erred by applying enhancements for use of a minor and obstruction of justice, it would impose a 121-month sentence based on § 3553(a). II. Discussion “[W]e review the imposition of sentences, whether inside or outside the Guidelines range, [under] a deferential abuse-of-discretion standard.” United States v. Hayes, 518 F.3d 989, 995 (8th Cir.2008) (quotation omitted). We “must first ensure that the district court committed no significant procedural error.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Procedural error includes “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.” Id. “In the absence of procedural error below, we ‘should then consider the substantive rea sonableness of the sentence imposed under an abuse-of-discretion standard.’ ” United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). A. Appellant Chad Jones Jones challenges" }, { "docid": "22142489", "title": "", "text": "as well.” Id. Ultimately, the district court determined that the recommended Guidelines range of 15 to 21 months’ imprisonment did not “properly reflect the statutory factors” because of Tristan-Madrigal’s “repeated reentry[] and his serious drinking problem, which leads him to drive and to be quite dangerous.” Id. at 14. The district court concluded that the “two factors” of deterrence and public protection counseled toward an above-Guidelines sentence of thirty-six months’ imprisonment in this non “heartland or ... mine run case.” Id. Tristan-Madrigal made clear his objection to the substantive reasonableness of the above-Guidelines sentence and timely appealed. II. ANALYSIS Tristan-Madrigal argues that the district court’s upward variance resulted in a sentence greater than necessary to achieve the sentencing goals outlined in 18 U.S.C. § 3553(a) because (1) the district court overemphasized his past criminal behavior; (2) the district court unreasonably considered his need for substance-abuse treatment and vocational training because it failed to recognize that as a non-English-proficient non-citizen Tristan-Madrigal is ineligible for custodial treatment and training; and, finally, (3) no other information in the record supported an upward variance of the magnitude that the district court imposed. For the reasons set forth below, we disagree with each of Tristan-Madrigal’s arguments and affirm his sentence. A. Standard of Review This court reviews a district court’s sentence for reasonableness. United States v. Walls, 546 F.3d 728, 736 (6th Cir.2008). Because Tristan-Madrigal does not challenge the procedural reasonableness of his sentence, and explicitly disclaimed such a challenge at oral argument, this court need only “ ‘consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.’ ” Id. (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)); see also United States v. Vallellanes, 339 Fed.Appx. 579, 582 (6th Cir.2009) (unpublished opinion) (bypassing the procedural-reasonableness analysis because the defendant did “not contend that his sentence [was] procedurally unreasonable”). The essence of a substantive-reasonableness claim is whether the length of the sentence is “greater than necessary” to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a). “A sentence is substantively unreasonable if the district" }, { "docid": "20280148", "title": "", "text": "240-month sentence, arguing it is substantively unreasonable because it is greater than necessary to promote the goals of 18 U.S.C. § 3553(a). This court will “review a criminal sentence for reasonableness, ‘first ensuring] the district court committed no significant procedural error, such as ... improperly calculating the Guidelines range,’ and then considering the sentence for substantive reasonableness under an abuse of discretion standard.” United States v. Spikes, 543 F.3d 1021, 1023 (8th Cir.2008), quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Newell does not challenge that he is a career offender under 28 U.S.C. § 994(h). The district court determined the advisory Guideline range as 262 to 327 months. The court varied downward, imposing a sentence of 240 months. Newell contends that the district court erred when it “did not consider the other [18 U.S.C.] § 3553(a) factors to be on equal footing with the Guidelines” and failed to address his argument that the Career Offender Guidelines should receive little weight because they produce sentences greater than necessary to comply with federal sentencing concerns. He argues that the Career Offender Guidelines “were not developed with the goal of achieving the objectives of § 3553(a), and therefore do not yield an appropriate sentence even in a mine-run case.” Newell contends the district court presumed the Career Offender Guidelines set a reasonable sentencing range, in violation of Gall v. United States, and the slightly reduced sentence did not recognize the flaw in the Career Offender Guidelines. See Gall, 552 U.S. at 50, 128 S.Ct. 586 (district court “may not presume that the Guidelines range is reasonable,” but must “make an individualized assessment based on the facts presented.”). The sentencing record shows no such presumption. Rather, the district court properly calculated the Guideline range. It then considered the factors in 18 U.S.C. § 3553(a), including Newell’s age, ability to work at gainful employment, and his care of his dependent wife. The court also noted the seriousness of the offense and Newell’s criminal history, which it characterized as “lengthy and serious.” The district court acknowledged Newell’s" }, { "docid": "22076639", "title": "", "text": "court concluded that, in order to deter Rivera-Santana, properly protect the public, and promote respect for the law, it was obliged to vary upward to the statutory maximum and impose a sentence of 240 months in prison. The court entered its judgment order on October 8, 2010, and Rivera-Santana has timely appealed. We possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). II. We review for reasonableness a sentence imposed by a district court. See Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In undertaking such a review, “we must first ensure that the district court committed no significant procedural error,” such as “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” United States v. Diosdado-Star, 630 F.3d 359, 363 (4th Cir.2011) (internal quotation marks omitted). Absent a significant procedural error, our next step is to assess the substantive reasonableness of the sentence imposed. See id. In either event, a “deferential abuse-of-discretion standard” applies to “any sentence, whether inside, just outside, or significantly outside the Guidelines range.” See United States v. Savillon-Matute, 636 F.3d 119, 122 (4th Cir.2011) (internal quotation marks omitted). III. Rivera-Santana maintains on appeal that his sentence is both procedurally and substantively unreasonable. His procedural challenges arise from three separate decisions made by the sentencing court: (1) the upward departure under Guidelines section 4A1.3(a), departing from the PSR-recommended Guidelines range of 57 to 71 months to an advisory Guidelines range of 77 to 96 months (the “criminal history category departure”); (2) the upward departure under Guidelines section 4A1.3(a)(4)(B), further departing to an advisory Guidelines range of 120 to 150 months (the “offense level departure”); and (3) the upward variance, pursuant to 18 U.S.C. § 3553(a), resulting in the statutory maximum of 240 months. Rivera-Santana identifies four instances of procedural error attributable to the two departures" }, { "docid": "4584135", "title": "", "text": "KELLY, Circuit Judge. Milton Gonzalez pled guilty to one count of illegal reentry subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). The district court sentenced him to 36 months in prison, 10 months below the calculated sentencing guideline range. On appeal Gonzalez argues that his sentence is substantively unreasonable. We affirm. I. Background Gonzalez, a Mexican citizen, has been removed from the United States on several occasions. In 2001 he was convicted in state court of possession with intent to distribute amphetamine, an aggravated felony, and was sentenced to 5 years imprisonment. In 2002 he was convicted in federal court of illegal reentry after deportation and was sentenced to 6 months imprisonment. In 2005 Gonzalez was removed after serving the sentences for these convictions. Law enforcement officials found Gonzalez in this country again in 2012 after he was stopped for a traffic violation. After being taken into custody, Gonzalez explained that he returned to the United States to see his girlfriend and two young children when he thought he would lose his battle with cancer. Gonzalez was indicted for, and pled guilty to, one count of illegal reentry subsequent to an aggravated felony conviction. Because of Gonzalez’s prior drug conviction, the district court applied a 16-level enhancement to his base offense level pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 2L1.2(b)(l)(A)(i) (2012). With this enhancement, the district court adopted a guidelines range of 46-57 months. However, the district court varied downward, and sentenced Gonzalez to 36 months II. Discussion In analyzing a district court sentence, we review first for procedural error and then for substantive reasonableness. United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Because Gonzalez does not argue that the district court committed any procedural error, we look only at the substantive reasonableness of his 36-month sentence. United States v. O’Connor, 567 F.3d 395, 397 (8th Cir.2009). We review the substantive reasonableness of a sentence for abuse of discretion. Feemster, 572 F.3d" }, { "docid": "20253985", "title": "", "text": "sentence run consecutively to the undischarged portion of his 30-year Texas murder sentence. “On appeal, we will review a sentence for an abuse of discretion, giving due deference to the district court’s decision.” United States v. Braggs, 511 F.3d 808, 812 (8th Cir.2008)(citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). First, we must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 552 U.S. at 51, 128 S.Ct. 586. If the sentence is procedurally sound, we “then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard,” and we “may ... apply a presumption of reasonableness” to a sentence within the advisory Guidelines range. Id. A district court’s decision to impose a consecutive sentence is similarly reviewed for reasonableness. See United States v. Shafer, 438 F.3d 1225, 1227 (8th Cir.2006). After reviewing the record, we can discern no procedural error in the court’s imposition of a 235-month sentence. The district court properly calculated Lomeli’s offense level and criminal history and correctly determined Lomeli’s advisory Guidelines sentencing range. The court then considered the 18 U.S.C. § 3553(a) factors in arriving at the sentence it deemed appropriate, and adequately explained its reasons for sentencing Lomeli at the top of the advisory Guidelines range, citing the seriousness of Lomeli’s past criminal conduct, the fact that this was his second drug-related conviction, and the fact that he is a violent and threatening person. As we explained above, it was not error for the court to consider Lomeli’s criminal history as this did not violate the U.S.-Mexico Extradition Treaty. We next turn to the question of whether the district court committed procedural error in ordering Lomeli’s sentence to run consecutively to the undischarged portion of his Texas" }, { "docid": "22753282", "title": "", "text": "EMILIO M. GARZA, Circuit Judge: Juan Delgado-Martinez raises several procedural challenges to his 30-month sentence for illegal reentry. For the following reasons, we vacate and remand the case for re-sentencing. I Delgado-Martinez pleaded guilty to being found in the United States after removal in violation of 8 U.S.C. § 1326. A U.S. Probation Officer completed a PreSentence Report (“PSR”). With regard to Delgado-Martinez’s criminal-history score, the PSR recommended a three-point addition for a 1996 burglary conviction, a three-point addition for a 1999 forgery conviction, and a one-point addition for a 2005 driving-without-a-license conviction. The PSR also recommended another two-point addition based on the allegation that Delgado-Martinez was on probation for the 2005 offense at the time of his illegal reentry. Delgado-Martinez filed written objections to these proposed enhancements, claiming that the government’s documents were insufficient to prove that he was the person convicted of the three prior offenses. At the sentencing hearing, the district court found that the government’s documents established Delgado-Martinez’s responsibility for the burglary and forgery convictions, but failed to sufficiently link Delgado-Martinez to the 2005 conviction for driving without a license. Thus, the court granted Delgado-Martinez’s objection as to the 2005 conviction. However, instead of reducing Delgado-Martinez’s criminal-history score by the three points added in the PSR as a result of the 2005 conviction, the court only reduced the score by one point. This one-point reduction resulted in a recommended Guidelines range of 30-37 months. The district court sentenced Delgado-Martinez to 30 months of incarceration, and Delgado-Martinez now appeals. II In reviewing a sentencing decision, we first must consider whether the district court committed a significant procedural error, such as improperly calculating the Guidelines range, treating the Guidelines as mandatory, or selecting a sentence based on clearly erroneous facts. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). If the sentence is proeedurally sound, we then consider the “substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. In exercising this bifurcated review process, we continue to review the district court’s application of the Guidelines de novo and its factual" }, { "docid": "8457188", "title": "", "text": "activity that Keskemety agreed to undertake for Sellers. We reverse the district court’s judgment on the amount of fraud loss, vacate the restitution order, and remand for resen-tencing. We need not and do not address Keskemety’s other arguments about substantive reasonableness or restitution. D. Lloyd’s Sentencing Appeal Lloyd pleaded guilty to one count of wire fraud in each of the two cases naming him as a defendant, and he does not challenge his convictions. He does challenge the 156-month sentence the district court imposed as both procedurally flawed and substantively unreasonable. “Procedural errors include, but are not limited to, incorrectly calculating the Guidelines range, treating the Guidelines as mandatory, failing to properly consider the [18 U.S.C.] § 3553(a) factors, using clearly erroneous facts when calculating the Guidelines range or determining the sentence, and failing to provide an adequate explanation for the sentence imposed.” United States v. Armstead, 552 F.3d 769, 776 (9th Cir.2008). The district court’s 156-month sentence was a downward variance from the Guidelines range of 210 to 262 months. Lloyd asserts — for the first time on this appeal — that the district court failed adequately to explain why it did not impose an even lower below-Guidelines sentence. His argument is without merit. The district court thoroughly explained its reasons for the sentence in over 20 pages of transcript. A careful review of the record satisfies us that the sentence was procedurally sound and that the district court did not abuse its discretion, much less plainly err, in the below-Guidelines sentence imposed and the explanation provided. Lloyd’s argument that the district court erred in not departing further goes to substantive reasonableness. See United States v. Ellis, 641 F.3d 411, 421 (9th Cir.2011). The record shows that the 156-month sentence, well below the bottom of the Guidelines range, was substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We affirm. II. The Appeals from the Convictions: Baker and Nelson A. The Indictments Baker, Nelson," }, { "docid": "16240666", "title": "", "text": "United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (analyzing the residual clause). Neither district court considered this question, and by not advancing this alternative argument on appeal, the government has waived it. See United States v. Knox, 573 F.3d 441, 450 (7th Cir.2009). 2. Reasonableness of the Illinois Sentence Ellis’s advisory guidelines range in the Illinois case was 46 to 57 months, but the district court imposed an above-guidelines sentence of 90 months in prison. The judge explained that Ellis’s extensive criminal history justified a sentence above the recommended range, noting that Ellis’s prior crimes were “potentially horrifying to the people involved” and that his earlier “ten-year time in jail did not deter [him] from committing crimes when he got out of jail.” Ellis argues that 90 months is unreasonably high. The government argues that 90 months is unreasonably low. Our review is for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “[W]e will uphold an above-guidelines sentence so long as the district court offered an adequate statement of its reasons, consistent with 18 U.S.C. § 3553(a), for imposing such a sentence.” United States v. McIntyre, 531 F.3d 481, 483 (7th Cir.2008) (per curiam). Under the circumstances here, a 90-month sentence strikes us as quite lenient. Ellis is a former chief enforcer for a violent Chicago street gang, committed serious gun crimes, and has an appalling criminal record and an acknowledged history of torture and extortion. But the court’s explanation for the sentence was adequate and grounded in an appropriate consideration of the § 3553(a) factors. That a longer sentence would have made sense does not make this sentence unreasonable. And the 90-month sentence is hardly unreasonably high, as Ellis contends. There was no abuse of discretion. III. Conclusion For the foregoing reasons, the judgment in the Illinois case is Affirmed. Ellis’s conviction on Count 9 in the Indiana case is Reversed, but the remaining convictions are Affirmed. Ellis’s sentence in the Indiana case is Vacated, and the case is Remanded for resentencing consistent with" }, { "docid": "7733820", "title": "", "text": "that although the district court’s Guidelines calculation was technically correct, consideration of the § 3553(a) factors necessitated a below-Guidelines sentence. The first argument cited § 3553(a)(2)(C) and claimed that a Guidelines range accounting for his 1985 conviction overstated the seriousness of his criminal history by elevating it to a Category 3, and thus would be greater than necessary to protect the public from further crimes of the defendant. The second argument cited § 3553(a)(2)(A) and claimed that a Guidelines range accounting for his 1985 conviction overstated the seriousness of his reentry offense by imposing a 16-level offense enhancement, pursuant to § 2L1.2(b)(l)(A). We pause for a point of clarity and underscore that Marin-Castano essentially split one argument into “two principal arguments” by dividing it between the horizontal (criminal history) and vertical (offense level) axes of the Guidelines Sentencing Table. After sentencing, MarinCastano appealed, claiming the district court committed procedural error by failing to properly address both of these arguments. In addition to procedural error, MarinCastano also claims the sentence imposed was substantively unreasonable because it failed to give proper weight to the age of Marin-Castano’s 1985 conviction, in accordance with the 18 U.S.C. § 3553(a) factors. We disagree. We find neither procedural error, nor substantive unreasonableness with regard to the district court’s imposed sentence of 46 months’ imprisonment. Because Marin-Castano argues that the court committed both procedural and substantive error, we employ more than one standard of review. First, we conduct a de novo review for any procedural error. United States v. Curby, 595 F.3d 794, 796 (7th Cir.2010). If we determine that the district court committed no procedural error, we review the sentence for substantive reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In this circuit, we do apply a presumption of reasonableness to all within-Guidelines sentences. It is not a binding presumption, but it applies in every case and it is the defendant’s burden to overcome it. See Gall, 552 U.S. at 51, 128 S.Ct. 586 (an appellate court may apply a presumption of reasonableness to" }, { "docid": "2726175", "title": "", "text": "This court’s review of sentencing decisions involves evaluation of both procedural and substantive reasonableness. Arroyo-Maldonado contends that the district court committed a significant procedural error by failing to consider the relevant sentencing factors and by giving undue weight to the nature and circumstances of the offense. Arroyo-Maldonado also argues that the district court erred procedurally by mistakenly believing that the statute he pleaded guilty to contained a mandatory minimum sentence of one hundred and twenty months. In support of this contention, he highlights a portion of the sentencing hearing where the court stated, “[t]he court has also taken into consideration the plea agreement between the parties; however, it finds that a statutory sentence at the lower end is more adequate considering his criminal history and considering his nefarious white crime incidents.” Arroyo-Maldonado avers that 18 U.S.C. §§ 1344 and 1349 contain no mandatory minimum sentence. As to the alleged substantive errors, Arroyo-Maldonado suggests that the district court’s sentence was unreasonable because it gave greater weight to his criminal history and the punitive 'component of a sentence than to “other factors such as rehabilitation measures.” Furthermore, he argues that the district court sentenced him outside of the properly calculated GSR of seventy to eighty-seven months solely based on punitive factors, which makes the sentence substantively unreasonable. He therefore contends that the court failed to abide by its obligation under the Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), to impose a sentence that is “sufficient, but not greater than necessary.” Accordingly, Arroyo-Maldonado argues that his sentencing decision must be vacated and remanded. We review sentencing decisions under the advisory Guidelines for “reasonableness, regardless of whether they fall outside or inside the applicable GSR.” United States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir.2006). Typically, we review sentences imposed under the advisory Guidelines for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Santiago-Rivera, 744 F.3d 229, 232 (1st Cir.2014) (citing United States v. Martin, 520 F.3d 87," }, { "docid": "15598916", "title": "", "text": "assigning Hall nine criminal history points, it added three points for the offense listed in paragraph 58 of Hall’s presentence report. Paragraph 58 listed Hall’s aforementioned state convictions for aggravated murder and possession of a firearm under a disability. Without specifying which of these convictions justified the additional three points, the district court brought Hall’s total number of criminal history points to 12, thereby setting Hall’s criminal history category at V. With an adjusted offense level of 40 and a criminal history category of V, the court determined Hall’s advisory sentencing range under the Guidelines to be between 360 months’ imprisonment and life. The district court then sentenced Hall to 480 months’ imprisonment for three counts and 240 months’ imprisonment for the remaining two. It set those punishments to run concurrently with one another but consecutively to Hall’s state sentences. Hall objected to the use of his state murder conviction to enhance his base offense level under the Guidelines. He did not, however, object to the district court’s setting his federal sentence to run consecutively to his state sentences. He now appeals his federal sentence, arguing that it is procedurally unreasonable because it does not run concurrently with his state sentences, and that it is substantively unreasonable because the offense level in § 2Al.l(a) was not supported by empirical data when established by the Sentencing Commission. DISCUSSION A. Standard of Review We review a district court’s sentencing determination for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). A district court abuses its discretion when it imposes a sentence that is either procedurally or substantively unreasonable. Id. A sentence is procedurally unreasonable where a district court fails to calculate or improperly calculates the Guidelines range, treats the Guidelines as mandatory, fails to consider the 18 U.S.C. § 3553(a) sentencing factors, selects a sentence based upon erroneous facts, or fails to adequately explain its chosen sentence and its deviation, if any, from the Guidelines range. United States v. Alexander, 543 F.3d 819, 822 (6th Cir.2008) (citing Gall, 552 U.S. at 51," }, { "docid": "20511209", "title": "", "text": "of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim’s loss and economic circumstances of each defendant.” 18 U.S.C. § 3664(h). Based on Earnest’s level of involvement in the scheme, the district court was warranted in holding him responsible for the entire restitution amount. The restitution order is thus affirmed. 3. Reasonableness of Sentence Earnest’s final challenge to his sentence is that it was substantively unreasonable because there was a “significant sentencing disparity” between his 172-month sentence and the 72-month sentence of his co-conspirator, Marekell Steward. The reasonableness of a sentence is reviewed for abuse of discretion. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Although Steward’s sentence was less than one-half of Earnest’s, there were no unwarranted sentencing disparities between them because Steward and Earnest were not similarly situated. Steward cooperated with the government and entered into a plea agreement, but Earnest provided no assistance and proceeded to trial. Additionally, Steward had a criminal history category of I, whereas Earnest had a criminal history category of III. Accordingly, they were not similarly situated, and it would have been improper for the district court to have compared them. See United States v. Jayyousi, 657 F.3d 1085, 1117-18 (11th Cir.2011) (holding that it is erroneous for a district court to compare the sentences of a defendant who pleaded guilty with one who did not and to compare defendants with significantly different criminal histories). Further, the record establishes that the district court correctly calculated and carefully reviewed Earnest’s guideline range. See Gall, 552 U.S. at 54, 128 S.Ct. 586 (“[A correct Guidelines range] necessarily [gives] significant weight and consideration to the need to avoid unwarranted disparities.”). Thus, the district court gave significant weight and consideration to the need to avoid unwarranted disparities when it imposed Earnest’s sentence. See id. The district court also properly considered the other relevant factors in 18 U.S.C. § 3553(a). Accordingly, under the totality of the circumstances, Earnest has not shown that his sentence was substantively unreasonable. See United States v. Gonzalez, 550" }, { "docid": "8802820", "title": "", "text": "review the reasonableness of a sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “We may set aside a sentence only if we determine, after giving a full measure of deference to the sentencing judge, that the sentence imposed truly is unreasonable.” United States v. Irey, 612 F.3d 1160, 1191 (11th Cir.2010) (en banc). The district court must impose a sentence “sufficient, but not greater than necessary to comply with the purposes” listed in § 3553(a), including the need to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, deter criminal conduct, and protect the public from the defendant’s future criminal conduct. 18 U.S.C. § 3553(a). We examine the reasonableness of a sentence mindful of the totality of the circumstances. Gall, 552 U.S. at 51, 128 S.Ct. 586. “The party challenging the sentence bears the burden to show it is unreasonable in light of the record and the § 3553(a) factors.” United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.2010). We conclude that Victor has not demonstrated his sentence was substantively unreasonable. His 121-month sentence was within the applicable guideline range, and we ordinarily expect such a sentence to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir.2008). And his sentence is supported by the § 3553(a) factors, which the district court discussed at length. The court considered the nature and circumstances of Victor’s offenses, emphasizing that, even when officers arrived on the scene, Victor “prepared himself to respond forcibly to them.” See 18 U.S.C. § 3553(a)(1). The court also considered Victor’s history and characteristics, explaining that Victor had no criminal history, a supportive family, and a remorseful attitude. See id. And the court stressed the need for Victor’s sentence to “reflect the seriousness of this crime,” “promote respect for the law,” and serve as a deterrent. See id. § 3553(a)(2). Based on these carefully considered factors, we do not agree that the district court’s failure to impose a below-guidelines sentence was unreasonable. AFFIRMED. . We" }, { "docid": "23030501", "title": "", "text": "COLLOTON, Circuit Judge. Ismael Ruelas-Mendez pled guilty to illegal re-entry to the United States after a previous deportation, in violation of 8 U.S.C. § 1326(a). The district court sentenced him to 46 months’ imprisonment, at the bottom of the advisory guideline range. We affirm. On May 14, 2007, Ruelas-Mendez was arrested for possession of cocaine. An investigation revealed that he was in the United States unlawfully, and that he had been deported from the country twice before. The first removal occurred in December 1992, following convictions in Oregon state court for cocaine trafficking offenses, and the second in August 2002, after a federal conviction in Texas for illegal re-entry. In June 2007, a grand jury charged Rue-las-Mendez with unlawful re-entry into the United States after a previous deportation. He entered a plea of guilty. The probation office calculated Ruelas-Mendez’s advisory guideline range to be 46 to 57 months’ imprisonment, and the district court adopted the calculation. Ruelas-Mendez urged the court to impose a sentence below the advisory range, based on USSG § 4A1.3 and an alleged overstatement of his criminal history, and based on the factors set forth in 18 U.S.C. § 3553(a). The court rejected these arguments and sentenced Ruelas-Mendez to 46 months’ imprisonment. On appeal, Ruelas-Mendez argues that the sentence is substantively unreasonable, because the district court failed to give adequate weight to mitigating facts, and gave too much weight to the sentencing guidelines and the need for deterrence. We review the reasonableness of the district court’s sentence under a deferential abuse-of-discretion standard. Gall v. United States, — U.S.-, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). Because the court imposed a sentence within the advisory guideline range and consistent with the recommendation of the Sentencing Commission, we presume that it is substantively reasonable. United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.2005); see Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462-68, 168 L.Ed.2d 203 (2007). Ruelas-Mendez contends that the district court gave “no apparent weight to the unique and devastating circumstances” arising from the fact that his children reside in the United States" } ]

[ { "docid": "8321980", "title": "", "text": "transmute its legal nature from an entire obligation into several separate obligations each arising from the several periodic payments required to be made, until the whole is paid. Though analogized to “wages” for its preferential status as against the common creditors, it is unlike wages in that the employer is not free to terminate the continuing obligation by discharging the employé. The whole unpaid balance of “compensation” is thus “due and owing” (in the terms of the Maryland statute) although payable under the award periodically in the future, and the amounts unpaid in this case were therefore so due and owing during the three months period prior to the receivership. There was no element of contingency inherent in the obligation as was present in the case of Baltimore Trust Co. v. Rowe, 141 Md. 155, 118 A. 405, relied on by counsel for the Receivers. By section 2 (12) of the Longshoremen’s and Harbor Workers’ Compensation Act (33 USCA § 902 (12), “ ‘compensation’ means the money allowance payable to an employee or to his dependents as provided for in this chapter.” And as said in the Wheeling Case, supra: “Its purpose is to extend to the workers upon navigable waters of the United States, who cannot be reached by state legislation, the benefits of a compulsory system of compensation for disability or death resulting from injuries received in the course of their employment. This system of compensation is based, not upon ancient fictions of the law, but upon the principles of industrial insurance in application of the theory that industrial accidents, whether due to the negligence of the worker or not, are a hazard of the business; and that they should be borne, not by the individual worker, but by the industry in which he is engaged.” Therefore, when the Longshoremen’s Aet gives that preferential status to “compensation” which is given by the state law to “wages” without limit of amount, it is unreasonable to conclude that Congress meant, by reference to the state law, to limit the preference to only those longshoremen and harbor workers whose injuries occurred" } ]

[ { "docid": "23262208", "title": "", "text": "in these eases as to findings of facts by officials of the executive department- is not applicable here. And when we look to the reason and spirit of the act we are led to the same eon elusion. The statute in question is modeled upon the New York Workmen’s Compensation Law, upheld in New York Central R. Co. v. White, 243 U. S. 188, 37 S. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629. Its purpose is to extend to the workers upon navigable waters of the United States, who cannot be reached by state legislation, the benefits of a compulsory system of compensation for disability or death resulting from injuries received in the course of their employment. This system of compensation is based, not upon ancient. fictions of the law, but upon the principles of industrial insurance in application of the theory that industrial accidents, whether due to the negligence of the worker or not, are a hazard of the business; and that they should be borne, not by the individual worker, but by the industry in which he is engaged. Chief among the benefits of the act is that it eliminates the delay and expense incident to litigation; - but this benefit would be largely if not entirely lost if, upon application for injunction, the court should be under the necessity of hearing de novo the claim for compensation or of weighing the evidence and passing upon the facts. If such were the law, the courts would be appealed to in practically every contested case, counsel would be as necessary as formerly, and the provision for hearing before the Deputy Commissioner, instead of eliminating the delay of litigation, would increase it. This certainly was not the intention of Congress. Another reason for thinking that it was not intended that a hearing de novo or a review of the facts by the court should be had, is that section 22 of the act (33 USCA § 922) provides that the Deputy Commissioner upon his own initiative, or1 upon application of any party" }, { "docid": "9977592", "title": "", "text": "borne, not by the individual worker, but by the industry in which he is engaged. Chief among the benefits of1 the act is that it eliminates the delay and expense incident to litigation.” The statute, therefore, extends to workers upon the navigable waters of the United States the benefits of these salutary laws which substitute for the uncertainties of the past where the worker, in case of accident, had to litigate with his employer the question of liability, the certainty that in case of accident he will be compensated according to a definite schedule. That certainty avails ■ the employer also, for he, with the knowledge of his liability, is in a position to protect himself by insurance against the contingency of industrial accidents. The humaneness of these laws has been attested by the universality with which they have been adopted in all forward-looking commonwealths. And while at the time of their adoption, there, may have been objections to them, it is doubtful if either the employer or employed groups would desire to replace their orderly certainty by the anarchic uncertainty of past methods. In interpreting this statute, courts have construed it as a complete scheme aiming to achieve a specific result subject only to review, not in a trial de novo, but in a limited judicial review, upon the record made before the Deputy Commissioner, in order to determine whether his findings should be sustained. In applying this power of review, courts consider the Deputy Commissioner’s findings of fact conclusive, if they are sustained by substantial evidence. Wheeling Corrugating Co. v. McManigal, supra. And just as the effectiveness of the entire scheme would be destroyed if, upon review, a trial de novo were had before the District Court, so would its effectiveness also be destroyed if we did away with the limitations upon the right to review contained in the statute. This interpretation finds support also in clause (d) of section 921, which provides specifically that no proceedings “for suspending, setting aside, or enforcing a compensation order, whether rejecting a claim or making an award,” shall be instituted except" }, { "docid": "23493604", "title": "", "text": "act was intended, by Congress, to' cover just such an employee as was De Wald. It is admitted by attorneys for the defendant that the purpose of Congress was to give stevedores a different right from that granted them by the, decision in the Haverty Case. In Wheeling Corrugating Company v. McManigal, 41 F.(2d) 593, this court sustained an award in the ease of a carpenter foreman on a barge, and while the particular point here discussed was not raised in that case, the facts are very similar to those in the instant case. In Norgueira v. New York, New Haven & Hartford R. Co., 281 U. S. 128, 50 S. Ct. 303, 74 L. Ed. 754, Mr. Chief Justice Hughes discusses' the history of this and connected legislation, and the general intent of the Longshoremen’s Act. He says, in part: “The general scheme of the Longshoremen’s and Harbor Workers’ Compensation Act was to provide compensation to employees engaged in maritime employment, except as stated, for disability or death resulting from injury occurring upon the navigable waters of the United States where recovery through workmen’s compensation proceedings might not validly be provided by state law. * * * . “Employers are thus defined in section 2, subdivision (4), 44 Stat. 1425 (U. S. C. tit. 33, § 902, 33 USCA § 902(4): ‘The term “employer” means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock).’ The term is not defined otherwise, with respect either to the nature or the scope of the enterprises in which the employer is engaged. The definition is manifestly broad enough to embrace a railroad company, provided it has employees who ‘are employed in maritime employment, in whole or in part, upon the navigable waters of the United States.’ “The employees subject to the act are not defined affirmatively, but section 2, subdivision (3), Id., contains the following limitation : ‘The term “employee” does not include a master or member of a crew of any vessel, nor" }, { "docid": "9977590", "title": "", "text": "tariff acts. See Louisville Pillow Co. v. United States (C.C.A. 6, 1906) 144 F. 386; United States v. Mexican International R. Co. (C.C.A. 5, 1907) 151 F. 545; United States v. Vitelli & Son (1914) 5 Ct.Cust.App. 151. On the application oí these principles to administrative orders in general, see cases under heading “Jurisdictional Limitations And Administrative Finality” in Ernst Freund: “Cases on Administrative Law” (2 Fd. 1928) pp. 643-730. The object of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. §§ 901-950, adopted in 1927, is to extend to the particular class of workers the benefit of workmen’s compensation, which in the last 30 years has taken the place, in England, France, Germany, and various states of the United States, and in some branches subject to federal legislation, of the old haphazard system of deal ing with the problem of industrial accidents. These statutes seek to throw upon the industry the liability for injuries irrespective of fault, excluding, at times, willful negligence. For all cases of accidental injury or death arising out of or in the course of employment and occupational diseases or infections arising naturally out of such employment the particular statute provides (as do others in other fields of industry) a graduated system of compensation to be borne by the industry. See Pyrites Co., Inc., v. Davison Chemical Co. (D.C.Md.933) 4 F.Supp. 294; Wheeling Corrugating Co. v. McManigal (C.C.A. 4, 1930) 41 F.(2d) 593, 595. Thus, Parker, Circuit Judge, speaking in Wheeling Corrugating Co. v. McManigal, supra, on the object of the statute: “Its purpose is to extend to the workers upon navigable waters of the United States, who cannot be reached by state legislation, the benefits of a compulsory system of compensation for disability or death resulting from injuries received in the course of their employment. This system of compensation is based, not upon ancient fictions of the law, but- upon the principles of industrial insurance in application of- the theory that industrial accidents, whether due to the negligence of the worker or not, are a hazard of the business; and that they should be" }, { "docid": "9977591", "title": "", "text": "or in the course of employment and occupational diseases or infections arising naturally out of such employment the particular statute provides (as do others in other fields of industry) a graduated system of compensation to be borne by the industry. See Pyrites Co., Inc., v. Davison Chemical Co. (D.C.Md.933) 4 F.Supp. 294; Wheeling Corrugating Co. v. McManigal (C.C.A. 4, 1930) 41 F.(2d) 593, 595. Thus, Parker, Circuit Judge, speaking in Wheeling Corrugating Co. v. McManigal, supra, on the object of the statute: “Its purpose is to extend to the workers upon navigable waters of the United States, who cannot be reached by state legislation, the benefits of a compulsory system of compensation for disability or death resulting from injuries received in the course of their employment. This system of compensation is based, not upon ancient fictions of the law, but- upon the principles of industrial insurance in application of- the theory that industrial accidents, whether due to the negligence of the worker or not, are a hazard of the business; and that they should be borne, not by the individual worker, but by the industry in which he is engaged. Chief among the benefits of1 the act is that it eliminates the delay and expense incident to litigation.” The statute, therefore, extends to workers upon the navigable waters of the United States the benefits of these salutary laws which substitute for the uncertainties of the past where the worker, in case of accident, had to litigate with his employer the question of liability, the certainty that in case of accident he will be compensated according to a definite schedule. That certainty avails ■ the employer also, for he, with the knowledge of his liability, is in a position to protect himself by insurance against the contingency of industrial accidents. The humaneness of these laws has been attested by the universality with which they have been adopted in all forward-looking commonwealths. And while at the time of their adoption, there, may have been objections to them, it is doubtful if either the employer or employed groups would desire to replace their" }, { "docid": "15669692", "title": "", "text": "making the application. The employé had four dependent children. The Judge, Sir Sherston Baker, made an order reducing the sum payable from 13 shillings to 1 pence a week during the imprisonment; and expressed a wish that the employer should in the meantime pay the balance of 12 shillings, 11 pence to the children of the prisoner, which their attorney said should be attended to. It is inferable from the rather meagre report that the scope of review in the County Court, was quite different from that possible in this case. Considered on principle, apart from the above authorities, there would seem to be little support for plaintiffs’ contention in these cases. Their argument seems necessarily to be based on the underlying assumption that the payments for temporary partial disability are a matter of grace rather than of obligation to the injured employé. This view is erroneous. The legal theory inherent in the Longshoremen’s Act as in Workmen’s Compensation Acts generally, is the substitution of a certain amount of compensation (variable within limits) to the employé for his common law right of aetion which is taken away by the statute. While the payments for partial disability are spread over a period of time, for considerations of public policy, the obligation of the employer arises from the fact of the injury in the course of employment and accrues at the time of the injury. The subject matter has been heretofore discussed to some extent by the Circuit Court of Appeals for this Circuit in Wheeling Corrugating Co. v. McManigal, 41 F.(2d) 593, 595; United States Casualty Co. v. Taylor, 64 F.(2d) 521 and Bowen v. Hockley, 71 F.(2d) 781; also in the opinion of this court in Pyrites Co. v. Davison Chemical. Co., 4 F. Supp. 294, 297 [affirmed sub. nom. Hockley v. Wilson (C. C. A.) 70 F.(2d) 108], where it was said: “It is a statutory substitute for the common law right of action by the employee which might culminate in a judgment for a capital sum as damages. The obligation of the employer to indemnify for the loss" }, { "docid": "13199036", "title": "", "text": "Act to ascertain whether the Act is applicable in the first instance to the Plaintiffs’ claims. Thus, whether or not the Virginia Supreme Court would recognize an intentional tort exception is only relevant here if it is determined that an exposure to toxic chemicals is a compensa-ble injury or disease under the Virginia Worker’s Compensation Statute. Certainly, there are numerous opinions both in Virginia and West Virginia which support the view that Worker’s Compensation is the exclusive remedy for an “injury” arising out of and in the course of employment. One such decision is that of Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73 (1946), in which the highest Court of Virginia discussed the reasoning behind such exclusivity. The Feitig Court stated: ... [The Workers’ Compensation Law] is as essential to industry as it is to labor. It compromises one of the most important branches of law. Upon its effectiveness depends the potential welfare of a large number of employees and their families. It places upon industry as an expense of the business the pecuniary loss, measured by the compensation provided in the statute, attendant upon all accidents to employees within the hazards of the industry. It extends the employer’s liability to all accidental personal injuries “arising out of and in the course of the employment,” the expense of which is added to the cost of production. The employer surrenders his right of defense on the ground of contributory negligence and the common-law doctrines of the assumption of risk and fellow servants. The rules of evidence are relaxed. The employee surrenders his right to a trial by jury and agrees to accept an arbitrary amount fixed by statute in lieu of full compensation for the injuries sustained. He gains a wider security. The issue of negligence or non-negligence of the employer and the fellow servants is eliminated. Long, costly and delayed litigation is avoided. A smaller but speedier recovery is guaranteed.... Feitig, 38 S.E.2d at 73-74 (emphasis added). The Feitig Court then held that the exclusivity provision of the Act would not apply where an employee was injured while" }, { "docid": "13199037", "title": "", "text": "pecuniary loss, measured by the compensation provided in the statute, attendant upon all accidents to employees within the hazards of the industry. It extends the employer’s liability to all accidental personal injuries “arising out of and in the course of the employment,” the expense of which is added to the cost of production. The employer surrenders his right of defense on the ground of contributory negligence and the common-law doctrines of the assumption of risk and fellow servants. The rules of evidence are relaxed. The employee surrenders his right to a trial by jury and agrees to accept an arbitrary amount fixed by statute in lieu of full compensation for the injuries sustained. He gains a wider security. The issue of negligence or non-negligence of the employer and the fellow servants is eliminated. Long, costly and delayed litigation is avoided. A smaller but speedier recovery is guaranteed.... Feitig, 38 S.E.2d at 73-74 (emphasis added). The Feitig Court then held that the exclusivity provision of the Act would not apply where an employee was injured while performing the duties of his employer by the negligence of “a stranger to the business.” The Court felt that such injury was “... not truly and inherently within the industrial field.” Id. at 74. In reaching this conclusion, the Court relied partly on the earlier decision of Griffith v. Raven Red Ash Coal Co., 179 Va. 790, 20 S.E.2d 530 (1942), in which it had held that the Act left unimpaired the common law right of action against an employer for damages for the personal injury or death of an employee when such injury or death does not arise out of and in the course of the employment. The Griffith Court noted in its analysis that “[ajlthough in derogation of the common law, [the Act] is highly remedial and should be liberally construed in favor of the workman.” Griffith, 20 S.E.2d at 533. The Court cautioned, however, that “[w]e should remember, too, that ‘the common law is not to be considered as altered or changed by statute unless the legislative intent be plainly manifested.’ ”" }, { "docid": "22843659", "title": "", "text": "as the subject matter is concerned, the commerce clause should be held applicable. Second. With this opinion as to the validity of a pension measure if it is reasonably conceived, we are brought to the question of due process, — whether the particular pro visions of the retirement act now before us violate the requirement of due process which, under the Fifth Amendment, limits the exercise of the commerce power. The most serious of the objections, sustained by the Court on this score, relates to the establishment of a unitary or pooling system for all railroads. It is said that in this respect the plan disregards the private and separate ownership of the respective carriers, treating them as a single employer, and illustrations are given to show that unequal burdens are thus imposed. The objection encounters previous decisions of this Court. We have sustained a unitary or group system under state compensation acts against the argument under the due process clause of the Fourteenth Amendment. Mountain Timber Co. v. Washington, supra. The Washington compensation act established a state fund for the compensation of workmen injured in hazardous employment, and the fund was maintained by compulsory contributions from employers in such industries. While classes of industries were established, each class was made liable for the accidents occurring in that class. The Court described the law as so operating that “ the enforced contributions of the employer are to be made whether injuries have befallen his own employees or not, so that however prudently one may manage his business, even to the point of immunity to his employees from accidental injury or death, he nevertheless is required to make periodical contributions to a fund for making compensation to the injured employees of his perhaps negligent competitors.” Id., pp. 236, 237. The statute was sustained in the view that its provisions did not rest upon the wrong or neglect of employers, but upon the responsibility which was deemed to attach to those who conducted such industries. The Court concluded “ that the State acted within its power in declaring that no employer should" }, { "docid": "23262207", "title": "", "text": "279 U. S. 716, 49 S. Ct. 499, 73 L. Ed. 918, and Ox Fibre Brush Co. v. Blair (C. C. A. 4th) 32 F.(2d) 42, as to findings of fact by the Board of Tax Appeals; Williamsport Wire Rope Co. v. U. S., 277 U. S. 551, 48 S. Ct. 587, 72 L. Ed. 985, as to determination of “special assessment” by the Commissioner of Internal Revenue; Virginian Ry. Co. v. U. S., 272 U. S. 658, 47 S. Ct. 222, 71 L. Ed. 463, and Anchor Coal Co. v. U. S. (D. C.) 25 F.(2d) 462, 471, and eases there cited, as to findings by the Interstate Commerce Commission; Federal Trade Commission v. Eastman Kodak Co., 274 U. S. 619, 623, 47 S. Ct. 688, 71 L. Ed. 1238, as to findings by the Federal Trade Commission; and Passavant v. U. S., 148 U. S. 214, 217, 13 S. Ct. 572, 37 L. Ed. 426, as to findings by the Board of Customs Appraisers. We see no reason why the rule laid down in these eases as to findings of facts by officials of the executive department- is not applicable here. And when we look to the reason and spirit of the act we are led to the same eon elusion. The statute in question is modeled upon the New York Workmen’s Compensation Law, upheld in New York Central R. Co. v. White, 243 U. S. 188, 37 S. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629. Its purpose is to extend to the workers upon navigable waters of the United States, who cannot be reached by state legislation, the benefits of a compulsory system of compensation for disability or death resulting from injuries received in the course of their employment. This system of compensation is based, not upon ancient. fictions of the law, but upon the principles of industrial insurance in application of the theory that industrial accidents, whether due to the negligence of the worker or not, are a hazard of the business; and that they should be borne," }, { "docid": "21385028", "title": "", "text": "continuing fact, as real and as necessary to industry planning as any other item. And an epocal change was wrought. Instead of every man being dependent on his own good luck and faultless care to keep him from ruin through his own or his fellow workmen’s negligence or that of his .employer’s, the bald fact that injuries do happen was. accepted as a constant in industry, and compensation therefor was placed where it more logically belonged —on the business itself. With such advance, through Workmen’s Compensation laws, the old Tort rules of self-responsibility for negligence and of fellow workmen's negligence were- wiped out with comprehensive elimination'of negligence as the basis for compensation. Section 904(b) of Title 33 U.S.C.A., provides without' qualification that: “Compensation shall be payable irrespective of fault as a cause for the injury.” And Section' 902(2) of the same statute provides: “The term ‘injury’ means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or . unavoidably results from such accidental injury, * * [Emphasis. ours.] We here digress from the.line.of our comment to say that we reject the thesis that § 902(2) limits recovery for subsequent injury, to disease or infection. Although the composition of the section is awkard, we hold that the part of the section worded, “or' as naturally or unavoidably results from such accidental injury” covers injuries through accidents which happen subsequently to a primary injury. In a sense, to be • compensable, the second injury must be as a part of the original injury. If the two are separated by an intervening cause, the second injury is not as a part of the first injury. Both the Commissioner and the district court found the first injury to Lasche to be compensable. The Commissioner held the second .injury compensable because he found it to be “directly attributable” to the first injury. The court held the second injury not compensable upon its own finding that Lasche wap negligent, in being .on the ladder in the" }, { "docid": "22566101", "title": "", "text": "of these passes. VIII. Moreover, the subjection of railroad employees while passengers to the hazards of uncompensated injuries is at war with the basic philosophy which has found expression in other industrial and social legislation for many years. Employers’ liability acts, compensation acts, social insurance legislation of the federal government and various states, and a host of other legislative policies have been grounded upon the basic premise that care of the accidentally injured should be accepted as a matter of great public concern. Congress has also erased every vestige of the old judicially created fellow-servant and assumption-of-risk doctrines in connection with suits by railroad employees on account of injuries suffered in the course of their employment. Tiller v. Atlantic C. L. R. Co., 318 U. S. 54. The analogy between these now repudiated judicially created tort-law doctrines and the present rule was pressed on the Court in briefs for the railroad in the Adams case. Congress has also emphatically outlawed all kinds of stipulations and contracts to exempt railroads from liability for their negligence in Employers’ Liability Act cases. Duncan v. Thompson, 315 U. S. 1. All of this body of legislation, and much more to which reference could be made, has departed from the premise of the Adams and Boering decisions that it is more important to society that men abide by ticket and contract stipulations than it is to have a system which provides compensation for the industrially injured and the dependents of those who are killed. For our society attempts to take care of its aged, unemployed, crippled and disabled, as well as the dependents of those killed by our industrial machine. See Georgetown College v. Hughes, 76 U. S. App. D. C. 123, 130 F. 2d 810, 822-825; Interstate Commerce Comm’n v. Railway Labor Assn., 315 U. S. 373, 376-378. And the present railroad regulatory system is such that payment by railroads for injuries inflicted by them upon passengers is just as certainly borne by the public as though those injured and their dependents were directly supported by governmental institutions. Whether allowance of damages for negligent" }, { "docid": "8450094", "title": "", "text": "to be an extension of the land. Congress, in passing the Longshoremen’s and Harbor Workers’ Compensation Act in 1927, 33 U.S.C.A. § 901 et seq., declared its purpose to restrict the liability under federal statutes of an employer of longshoremen “to injuries to his employees occurring on navigable waters”. Swanson v. Marra Bros., supra, 328 U.S. at pages 5, 6, 7, 66 S.Ct. at page 871. To oust state compensation acts from an established and important area of coverage by reason of the passage of the Extension in Admiralty Act, which makes no reference to the field of compensation law, would create a situation in which a longshoreman, such as the plaintiff herein, would not be covered by any workmen’s compensation act, state or federal, as the federal act covers only those injuries occurring “upon the navigable waters”, 33 U.S.C.A. § 903(a), and it is established that injuries suffered on piers or docks (as opposed to dry docks) are not included. It can hardly be said that the Extension in Admiralty Act was also intended to amend the federal compensation act to include injuries occurring on land as well as “upon the navigable waters”, and this is especially true when the Supreme Court has said, “Congress made clear its purpose to permit state compensation protection wherever possible”. Davis v. Department of Labor and Industries, 317 U.S. 249, 252, 63 S.Ct. 225, 227, 87 L.Ed. 246. See also United States Casualty Co. v. Taylor, 4 Cir., 64 F.2d 521, 524; Travelers Ins. Co. v. McManigal, 4 Cir., 139 F.2d 949, 951; both opinions by Judge Soper, cf. Gladden v. Stockard S. S. Co., 3 Cir., 184 F.2d 510. The motion for summary judgment filed by Export presents an entirely different principle of law. As plaintiff has receivéd and accepted compensation under the Virginia Workmen’s Compensation Act from the compensation insurance carrier of Whitehall, pursuant to an award, there exists no rights in behalf of plaintiff against Whitehall. Export argues strenuously that the work being done at the time of the accident was a part of Export’s “trade, business or occupation”, and" }, { "docid": "21385027", "title": "", "text": "workmen. ■ In an earlier day of industry, it' was thought logical enough for the law to exempt the employer from answering in damages for an employee’s injuries caused by his own careless acts, and injuries caused by the negligent acts of a fellow workman. If compensation for the injury was to be had, the one who caused it by his carelessness, it would seem, should provide it. But as the welfare of the workmen began to be considered by the employer and employee, to a great extent under the powerful urge of organized labor, it was realized that the principle that he who causes injury should compensate the injured, actually brought about deep injustices. In time it was realized that this old rule, which sounds axiomatically unassailable, when applied to compensation of injured industrial workers was based upon the standard of the faultless workman,- a person who existed only in the imagination. It began to be realized that the topmost efficiency of men leaves uncovered a very considerable margin of ineradicable- error as a continuing fact, as real and as necessary to industry planning as any other item. And an epocal change was wrought. Instead of every man being dependent on his own good luck and faultless care to keep him from ruin through his own or his fellow workmen’s negligence or that of his .employer’s, the bald fact that injuries do happen was. accepted as a constant in industry, and compensation therefor was placed where it more logically belonged —on the business itself. With such advance, through Workmen’s Compensation laws, the old Tort rules of self-responsibility for negligence and of fellow workmen's negligence were- wiped out with comprehensive elimination'of negligence as the basis for compensation. Section 904(b) of Title 33 U.S.C.A., provides without' qualification that: “Compensation shall be payable irrespective of fault as a cause for the injury.” And Section' 902(2) of the same statute provides: “The term ‘injury’ means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as" }, { "docid": "9977589", "title": "", "text": "of the petitioner that the limitation applies only to an order which awards compensation and not to an order which denies it. We cannot agree with this contention. Rather are we of the view that the phrase “a compensation order” in clause (a) of section 921, title 33, U.S.C.A., means any order relating to compensation, whether granting it or denying it. Such an interpretation conforms to the general spirit of administrative law which seeks to make decisions of administrative bodies final, subject only to the right of review for absence or excess of jurisdiction. Administrative finality depends not upon any general principles of procedure, but upon the limitations contained in the particular act. The aim is always to make the administrative scheme complete in itself and to limit the time and scope for judicial review. Uniformly, when courts have been confronted with such limitations they have enforced them with strictness. Courts have thus interpreted strictly the time limitations upon the right to review decisions of collectors of customs in duty matters contained in our various tariff acts. See Louisville Pillow Co. v. United States (C.C.A. 6, 1906) 144 F. 386; United States v. Mexican International R. Co. (C.C.A. 5, 1907) 151 F. 545; United States v. Vitelli & Son (1914) 5 Ct.Cust.App. 151. On the application oí these principles to administrative orders in general, see cases under heading “Jurisdictional Limitations And Administrative Finality” in Ernst Freund: “Cases on Administrative Law” (2 Fd. 1928) pp. 643-730. The object of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. §§ 901-950, adopted in 1927, is to extend to the particular class of workers the benefit of workmen’s compensation, which in the last 30 years has taken the place, in England, France, Germany, and various states of the United States, and in some branches subject to federal legislation, of the old haphazard system of deal ing with the problem of industrial accidents. These statutes seek to throw upon the industry the liability for injuries irrespective of fault, excluding, at times, willful negligence. For all cases of accidental injury or death arising out of" }, { "docid": "22998329", "title": "", "text": "why it should not be held compensable. In such ease, it is one of the casualties of the business; and it is the purpose of the compensation statutes to place the burden of such casualties upon the business and not upon the unfortunate employee.” And so in Beck Min. Co. v. Commission, 88 Okl. 34, 211 P. 69, 28 A. L. R. 197, compensation was awarded to an elderly employee affected with hardening of the arteries who suffered a stroke of apoplexy while engaged in work requiring great physical exertion, on the ground that the continuous physical exertion'.was a contributing cause. And in Jones Co. v. Industrial Commission, 303 Ill. 410, 135 N. E. 754, 755, it was held that a workman afflicted with arteriosclerosis overcome by exertions 'in the heat of a molding room as a result of which he suffered a cere^bral hemorrhage was entitled to compensation because of accidental injury arising out of the employment. See, also, Hughes v. Trustees, 245 N. Y. 201, 156 N. E. 665; Wheeling Corrugating Co. v. McManigal (C. C. A.) 41 F.(2d) 593; Mutual Life v. Dodge, supra; Ætna Ins. Co. v. Brand (C. C. A.) 265 F. 6, 13 A. L. R. 657. The compensation statute does not require that there should be an unusual or extraordinary condition existing at the time of the injury or incident to it, and so the fact that other workmen ma.y have gone into these refrigerating rooms without injury does not affect the question. The evidence definitely shows that the influence of the excessive cold on the leg and foot of appellant Kerper caused a numbness which on previous occasions he was able to shake off by the physical exertion of stamping his foot and forcing a natural flow of his blood, but that on December 4th this result did not follow but that pain and numbness increased until it became necessary to secure the services of a physician, and what thereafter followed was the natural result of what had previously occurred. In other words, on account of the diseased condition of the blood" }, { "docid": "8321972", "title": "", "text": "to be insufficient in amount. The act of Congress known as the Longshoremen’s and Harbor Workers’ Compensation Act became effective March 4, 1927 (title 33, United States Code, §§ 901-950 [33 USCA §§ 901-950]). Its constitutionality (with certain constructive implications) has recently been upheld by the Supreme Court in Crowell v. Benson, 285 U. S. 22, 52 S. Ct. 285, 76 L. Ed. 598, and the underlying philosophy and nature of the legislation, and its application, have been recently considered by the Circuit Court of Appeals for this Fourth Circuit in Wheeling Corrugating Co. v. McManigal, 41 F.(2d) 593, 595, and United States Casualty Co. v. Taylor (C. C. A.) 64 F.(2d) 521. The claim for preference in this ease is based on section 17 of the act (33 USCA § 917) which reads as follows: “Compensation a Lien Against Assets. Compensation shall have the same preference of hen against the assets of the carrier or employer without limit of amount as is now or may hereafter be allowed by law to the claimant for unpaid wages or otherwise.” So far as counsel or the court have been able to discover, there is no prior reported judicial decision construing or applying this section of the law as contained in this act of Congress. But, as stated by Judge Parker, in the Wheeling Corrugating Co. Case, supra, the statute is modeled upon the New York Workmen’s Compensation Law (Consol. Laws, c. 67); and section 917 is apparently a reproduction of section 34 of the New York law (as it read before recent amendment). See Lane v. Industrial Commissioner of State of New York, 54 F.(2d) 338, 340 (C. C. A. 2). The question presented here is whether or not by the proper construction of the section, it applies to the compensation awards made to these claimants respectively or any part thereof. While the seetion is brief and seemingly verbally clear, it nevertheless presents, as a ease of first impression, several points for consideration. The preference that is given is (a) the “same” (b) as is “allowed by law” (e) but “without" }, { "docid": "4480716", "title": "", "text": "based upon the total pay-roll and number of employees in each class of employment, at the lowest possible rate consistent with the maintenance of a solvent insurance fund and the creation of a reasonable surplus and reserve. A similar system was sustained in Mountain Timber Co. v. Washington, 243 U. S. 219, 241-243. The fallacy of the argument for holding it arbitrary and unreasonable to impose upon the employer, the burden of making compensation in employments where injury is improbable and difficult *to be foreseen, should be fairly apparent when it is pointed out that, in the absence of the statute, not a part but the entire loss consequent upon a disabling or fatal injury arising out of and in the course of the employment would have to be assumed-and borne by the disabled employee or his dependents, just as under the statute they still must bear all beyond the scheduled compensation. Yet they have no better opportunity to foresee the casualty than the employer, and (in the judgment of the legislature) less opportunity to make pro-. vision against it. The common-law rule, requiring the employee to assume the risk, and to take account of it in advance when fixing the wages, recognized dimly that the cost of industrial accidents ought to be borne by the industry, but failed to effectuate such a purpose, partly for the very reason that the hazard could not be estimated by the . individual in advance, nor the loss provided against without cooperation. \"The extension of the Compensation Law by addition of second group 45, following the recent modification of the definition of “employee,” far from demonstrating in its application to Rrinsky’s case unreasonable, arbitrary action by the State through its legislative department, shows, rather, intelligent foresight, an anticipation, based upon practical experience in the operation of the law as it stood before, that, however little foreseen by persons immediately concerned, accidental disabling injuries inevitably would occur in occupations not previously classed as hazardous, and a reasonable determination to include them in a scheme already found to be free from constitutional objection in its" }, { "docid": "11673178", "title": "", "text": "by RICO prohibited conduct, which they did not do. The Court agrees. Because all of Plaintiffs’ injuries are personal in nature, or derive from personal injuries (medical costs, lost wages, etc.), the Court finds that Plaintiffs cannot prove a RICO claim. The Court does not reach the other issues raised by Defendants in their motions. Plaintiffs argue that they do not seek damages for personal injury, that they do not seek tort damages, or damages available at common law. Rather, they contend that they have contracts of employment with UPS which contain an implied property right given them by statute, i.e., workers’ compensation benefits, and because of that, they have suffered the loss of “property.” While it is true that employers or their insurance carriers are required by law to pay workers’ compensation benefits when warranted, the injuries suffered by workers while on the job have never lost their characteristic as personal injuries. See, e.g., Mathis v. Interstate Motor Freight System, 408 Mich. 164, 179, 289 N.W.2d 708 (Mich.1980) (“The WDCA provides a substitute for common law tort liability founded upon an employer’s negligence in failing to maintain a safe working environment. Compensation under this act is for industrial injuries arising out and in the course of the injured person’s employment.”); Specht v. Citizens Ins. Co. of Am., 234 Mich.App. 292, 295, 593 N.W.2d 670 (Mich.Ct.App.1999) (an employee injured at the workplace is entitled to similar benefits under the WDCA as under the no-fault act, those being for “accidental bodily injury,” including medical expenses, work-loss benefits, replacement services and death benefits) (emphasis added). A threshold requirement for standing to sue under RICO is that the plaintiff sustained an injury to his business or property. Id. § 1964(c). The Sixth Circuit has held that this language in the RICO “ ‘excludes recovery for personal injuries.’ ” Drake v. B.F. Goodrich Co., 782 F.2d 638, 644 (6th Cir.1986) (quoting Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 105 S.Ct. 3292, 3297, 87 L.Ed.2d 346 (1985) (Marshall, J., dissenting)). Because Plaintiffs’ alleged damages are intimately related to their personal injuries, they do" }, { "docid": "2735592", "title": "", "text": "statute of limitations applicable to workers’ compensation claims for occupational diseases, the trial court failed to recognize that the nature of plaintiff’s section 502 claim for reimbursement of health benefits under a plan is entirely dissimilar to an employee’s claim for workers’ compensation benefits. The primary purpose of workers’ compensation acts is to provide compensation for disability or death resulting from occupational injuries or diseases. See Hadsock v. J.H. Harvey Co., 212 Ga. App. 782, 442 S.E.2d 892, 894 (1994). The Georgia workers’ compensation statute applicable to occupational diseases requires an employer to provide compensation to an employee disabled by a disease which arose out of and in the course of the employment ... “and has resulted from a hazard characteristic of the employment in excess of the hazards of such disease attending employment in general.” O.C.G.A. 34-9-281. Workers’ compensation is not insurance in the ordinary sense of the term and is not intended to replace general health and accident insurance. See 9 Couch on Insurance, § 133:2 (3d ed.1998 Supp.); State Insurance Fund v. Mather, 210 B.R. 838 (10th Cir.1997) (workers’ compensation is not a “plan,” but a statutorily mandated system requiring employers to spread risks of work-related injuries.). Nor is workers’ compensation based on a contract implied by law between the employer and the employee. Cudahy Packing Co. v. Parramore, 263 U.S. 418, 423, 44 S.Ct. 153, 154, 68 L.Ed. 366 (1923). It is a form of strict liability requiring employers to compensate employees for injuries or diseases arising out of the course of employment regardless of fault. Travelers Ins. Co. v. Southern Elec., Inc., 209 Ga.App. 718, 434 S.E.2d 507, 509 (1993). In contrast, an employer’s obligation to provide medical benefits under an ERISA plan is contractual. See Massachusetts Mut. Life Ins. Co., 473 U.S. at 147, 105 S.Ct. at 3092. A plaintiff’s action to enforce the medical benefits provision of a self-funded ERISA plan is essentially a lawsuit by an employee against her employer for breach of contract. Accordingly, the district court should have borrowed Georgia’s statute of limitations for an action on a written contract." } ]

[ { "docid": "16536373", "title": "", "text": "that the doctrine of res judicata should be used when the reasons for it are present in full force, modified when such modification is needed, and rejected when the reasons against its use outweigh those in its favor. 2 Davis, Administrative Law § 18.02 at 548 (1958). The crucial issue upon this motion, therefore, is whether there is some factor present either in the prior proceedings or the nature of an action under § 303 which militates against the application of the doctrine. Section 303, in opening up hot cargo agreements, secondary boycotts and work assignments to the district courts, represents a substantial exception to the N.L.R.B.’s primary jurisdiction over unfair labor practice proceedings. Sovern, Section 301 and the Primary Jurisdiction of the N.L.R.B., 76 Harv.L.Rev. 529, 549 (1963). Actions commenced under this section are considered entirely separate from cases that arise out of the same labor dispute but are brought before the N.L.R.B., International Longshoremen’s & Warehousemen’s Union v. Juneau Spruce Corp., 342 U.S. 237, 244, 72 S.Ct. 235, 239, 96 L.Ed. 275 (1952), and no substantive symmetry is required. N.L.R.B. v. Radio & Television Broadcast Engineers Union, 364 U.S. 573, 584-585, 81 S.Ct. 330, 337, 5 L.Ed.2d 302 (1964); Kipbea Baking Co. v. Strauss, 218 F.Supp. 696, 700 (E.D.N.Y.1963). “Not only are inconsistent decisions by Board and court possible,- but they have in fact been rendered.” Sovern, supra. Compare, United Brick & Clay Workers v. Deena Artware, Inc., 198 F.2d 637 (6th Cir.), cert. denied, 344 U.S. 897, 73 S.Ct. 277, 97 L.Ed. 694 (1952), with N.L.R.B. v. Deena Artware, Inc., 198 F.2d 645 (6th Cir. 1952), cert. denied, 345 U.S. 906, 73 S.Ct. 644, 97 L.Ed. 1342 (1953). Acquiescence in or approval of such results indicates that the courts feel that the congressional scheme of parallel enforcement of section 8(b) (4) violations by the courts and the Board precludes reliance upon res judicata or collateral estoppel based upon the findings of either fact finder. Apparently this is the second circuit’s position, for in this very action, while denying a stay pending arbitration, the court of appeals noted" } ]

[ { "docid": "469989", "title": "", "text": "but also all ‘pleadings, depositions, answers to interrogatories, and admissions’ properly on file and thus properly before [the] court.” Id., quoting Rule 56(c), Fed.R.Civ.P. Summary judgment “must be used only with extreme caution for it operates to deny a litigant his day in court.” Id. After examining the pleadings and other papers filed in this case, and after hearing the oral arguments presented on these issues, we conclude that defendant’s motion for summary judgment should be denied. The law in this Circuit is clear that “where two successive suits seek recovery for the same injury, a judgment on the merits operate as a bar to the later suit.” Cemer v. Marathon Oil Company, 583 F.2d 830 (6th Cir.1978) (citing Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 319-21, 47 S.Ct. 600, 601-03, 71 L.Ed. 1069 (1927). Res judicata precludes parties from relitigating not only the issues which were actually raised in the former lawsuit, but also all issues which could have been raised. Commissioner v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948). In deciding whether plaintiff’s claims are barred by res judicata, we must engage in a two-step analysis. First, we must decide whether the claims before this Court and those litigated in arbitration arise out of the same transaction or occurrence and seek recovery for the same injury, and whether plaintiff could have brought the claims it is now asserting, in the previous proceeding before the arbitration panel. Silcox v. United Trucking Service, Inc., 687 F.2d 848 (6th Cir.1982). Our second inquiry is whether the circumstances of this case render the general principles of res judicata inapplicable, as the Sixth Circuit has held that “[n]either collateral estoppel nor res judicata is rigidly applied. Both rules are qualified or rejected when their application would contravene an overriding public policy or result in manifest injustices.” Tipler v. E.I. du Pont de Nemours and Co., 443 F.2d 125, 128 (6th Cir.1971). Foremost, in our consideration of defendant’s motion are the recent pronouncements by the Supreme Court and the Sixth Circuit on the issue of the arbitrability of federal" }, { "docid": "20790892", "title": "", "text": "Aerojet-General Co., 282 F.Supp. 517 (C.D.Cal.1968); Cf. Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7 Cir. 1969). Relying on the Steelworkers Trilogy [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 v. Warrior & Gulf Mfg. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); and United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960)], Dewey v. Reynolds Metals Co., 429 F.2d 324 (7 Cir. 1970), aff’d. mem. by equally divided Court, 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971), decided in favor of arbitral finality, because to do otherwise “ * * * [C]ould sound the death knell to arbitration of labor disputes. * * * ” (429 F.2d at 332). This case involved religious, not racial discrimination. But see Tipler v. E. I. du Pont de Nemours and Co., 443 F.2d 125 (6 Cir. 1971), holding that a decision in an unfair labor practice proceeding was not res judicata as to a Title VII proceeding, in that the N.L.R.B. Trial Examiner had not permitted full presentation of the racial aspects of the claim before him. The Court noted (443 F.2d at 128) : “Neither collateral estoppel nor res judicata is rigidly applied. Both rules are qualified or rejected when their application would contravene an overriding public policy or result in manifest injustice. * * * ” Finally, see Fekete, supra, where the Court of Appeals implied (424 F.2d at 333), in dealing with the question of mootness [See Rosen v. Public Service E. & G. Co., 409 F.2d 775 (3 Cir. 1969)], that arbitration would not bar suit based on a Complaint adding additional claims. The better reasoned view is seen in Hutchings v. U. S. Industries, 428 F.2d 303 (5 Cir. 1970), which upheld as federally cognizable a Title VII suit, notwithstanding earlier grievance and arbitration proceedings involving the same issues which had been decided against plaintiff; and see Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5 Cir." }, { "docid": "19993770", "title": "", "text": "however, end our inquiry, for “This court has held ... that ‘[n]either collateral estoppel nor res judicata is rigidly applied. Both rules are qualified or rejected when their application would contravene an overriding public policy or result in manifest injustice.’ Tipler v. E. I. du Pont de Nemours and Co., 443 F.2d 125, 128 (6th Cir. 1971).” Bronson v. Board of Education, 525 F.2d 344 (6th Cir. 1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1665, 48 L.Ed.2d 175 (1976). See also United States v. LaFatch, 565 F.2d 81 (6th Cir. 1977), cert. denied, 435 U.S. 971, 98 S.Ct. 1611, 56 L.Ed.2d 62 (1978); Ferguson v. Winn Parish Police Jury, 589 F.2d 173, 176 n.6 (5th Cir. 1979). We must determine whether the circumstances of this case render the general principles of res judicata inapplicable. In so doing, we look for guidance to our previous decisions. In Tipler v. E. I. du Pont de Nemours and Co., supra, we declined to apply the doctrine of res judicata to a Title VII claim which alleged racial discrimination in employment conditions and a racially motivated discharge. The claimant had previously filed a charge with the NLRB alleging that he had been fired because of his union activities, in violation of §§ 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(aXl) and (3). The NLRB found that the claimant had been fired for cause and dismissed the claim. We held that the Title VII claim of racially motivated discharge was not barred by the NLRB’s adjudication of the reasons for the discharge. We based that conclusion on the important differences between the purposes and requirements of Title VII and those of the National Labor Relations Act. 443 F.2d at 129. More specifically, we noted that certain racially discriminatory practices that are not forbidden by the NLRA may be invalid under Title VII, and that the NLRB therefore did not adequately consider the factors involved in a Title VII violation. Id. Cf. Brown v. Felson, supra, 442 U.S. at 133-34, 99 S.Ct. at 2210-11, (refusal to apply res judicata in" }, { "docid": "22300228", "title": "", "text": "1140 (1947); Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149 (1943). Among the factors that bear on a determination of whether a state administrative proceeding is res judicata of a subsequent judicial litigation are (1) the effect which such determinations are accorded by the courts of the jurisdiction within which they are made; (2) the type of hearing which is held and the procedures which are followed by the agency; and (3) the intention of the administrative body and the expectations of the parties before it on the question of finality. See Restatement, Judgments § 4 (1942); ALI, Restatement 2d, Conflicts of Laws § 92, and Reporter’s Note, at 341 (P.O.D., Pt. I 1967). Taylor v. New York City Transit Authority, 309 F.Supp. 785, 791 (E.D.N.Y.), aff’d, 433 F.2d 665 (2d Cir. 1970). Finally, res judicata is a flexible doctrine. A mechanical application of the rule in this case is particularly undesirable in light of the policy considerations raised by the appellant. See Tipler v. E. I. duPont de Nemours and Co., 443 F.2d 125, 128 (6th Cir. 1971); IB Moore’s Federal Practice ¶ 0.405[12], at 791 (1974); 2 K. Davis, Administrative Law Treatise § 18.02-03, at 609 — 14 (1970 Supp.). The implications of barring a civil rights claim on res judicata grounds deserve careful consideration. SIMILARITY OF ISSUE Section 1981 of Title 42 is the present codification of § 16 of the Civil Rights Act of 1870, 16 Stat. 144. By its terms, the statute forbids racial discrimination in the making and enforcement of contracts. Recently, the Supreme Court, joining the federal courts of appeals, held that “§ 1981 affords a federal remedy against discrimination in private employment on the basis of race.” Johnson v. Railway Express Agency, 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975). See, e. g., Gresham v. Chambers, 501 F.2d 687 (2d Cir. 1974); Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974); Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir.), cert. denied, 409 U.S. 982, 93 S.Ct." }, { "docid": "23240219", "title": "", "text": "clear that a prior adverse decision on an employment complaint under the NLRA or Railway Labor Act does not preclude suit under Title VII or § 1981. Tipler v. E. I. duPont de Nemours and Co., 6 Cir. 1971, 443 F.2d 125, 128-130; Taylor v. Armco Steel Corp., 5 Cir. 1970, 429 F.2d 498; Norman v. Missouri Pacific R., 8 Cir. 1969, 414 F.2d 73; Willis v. Chicago Extruded Metals Co., N.D.Ill.1973, 358 F.Supp. 848, 852. Nor does the result reached in arbitration under a collective bargaining agreement have res judicata or collateral estoppel consequences for a Title VII suit. Alexander v. Gardner-Denver Co., 1974, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed. 2d 147, 158 n. 10, 165; Franks v. Bowman Transportation Co., supra, 495 F.2d at 408; Hutchings v. United States Industries, 5 Cir. 1970, 428 F.2d 303. Nor does a settlement reached under a state remedial scheme bar as a matter of res judicata or collateral estoppel a suit under Title VII. Voutsis v. Union Carbide Corp., 2 Cir. 1971, 452 F.2d 889, 894. On the other hand, the Supreme Court has held that when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose. United States v. Utah Const. & Mining Co., 1966, 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642, 660. See 2 K. Davis, Administrative Law Treatise §§ 18.02, 18.03 at 566, 18.04 at 577. And this court has previously indicated that where remedies proceed in tandem, first in the administrative arena of the NLRB and subsequently in a separate lawsuit in court, collateral estoppel may be applied to previously litigated facts. Nix v. Fulton Lodge No. 2, 5 Cir. 1972, 452 F.2d 794, 797; H. L. Robertson & Assoc., Inc. v. Plumbers Local 519, 5 Cir. 1970, 429 F.2d 520; Painters District Council No. 38 v. Edgewood Contracting Co., 5 Cir. 1969, 416 F.2d 1081. See Note; 67 Michigan L." }, { "docid": "2225926", "title": "", "text": "of the requirement of intent in Keyes, we noted that it is permissible for a court to infer intent from proven circumstances. 508 F.2d at 793. We conclude that there has been no such change in the law since Deal as to prevent altogether the appli cation of the doctrine of collateral estoppel to this case. Though there is a strong public policy against the continuance of racial segregation in public schools we do not believe that school desegregation cases are so different from other types of litigation that principles of res judicata and collateral estoppel should never be applied to them. The public policy consideration that there be an end to all litigation which underlies the doctrines of res judicata and collaterrgl estoppel is itself firmly established. This court has held, however, that “[n]either collateral estoppel nor res judicata is rigidly applied. Both rules are qualified or rejected when their application would contravene an overriding public policy or result in manifest injustice. Tipler v. E. I. duPont deNemours and Co., 6 Cir., 443 F.2d 125, 128 (1971). This appeal requires that we determine the extent to which the doctrine of res judicata should be applied in order to accommodate two competing public policies and avoid manifest injustice. We believe that the district court properly limited the application of the doctrine to this ease by holding that the principles of collateral estoppel, as opposed to res judicata, will be observed. Deal was filed as a “spurious class action” under Rule 23 of the Federal Rules of Civil Procedure prior to the 1966 amendment thereof. According to the authorities, an adverse judgment in such an action was not binding on persons who were not parties to the class action. See 3B J. Moore, Federal Practice 123.-10-1, at 23-2769; f 23.11[3], at 23-2851. On the other hand a public body should not be required to defend repeatedly against the same charge of improper conduct if it has been vindicated in an action brought by a person or group who validly and fairly represent those whose rights are alleged to have been infringed." }, { "docid": "23334914", "title": "", "text": "an economy of judicial effort to have the matter disposed of in the criminal proceeding by the judge that tried the case. The district court concluded that the judgment of the Ohio Court of Common Pleas is res judicata of the issue of ownership of the $50,000. Res judicata is a judicially created doctrine under which a valid final judgment is binding on the parties as to all matters of law that were or should have been adjudicated in a proceeding. The doctrines of res judicata and collateral estoppel have the salutary effect of bringing litigation to a final resolution and preventing repetitive suits over the same matter. The doctrine of res judicata should not be applied, however, when it would result in manifest injustice to a party or violate an overriding public policy. In Tipler v. E. I. duPont deNemours & Co., 443 F.2d 125, 128 (6th Cir. 1971), this court, speaking through Judge William E. Miller, said: Neither collateral estoppel nor res judi-cata is rigidly applied. Both rules are qualified or rejected when their application would contravene an overriding pub- lie policy or result in manifest injustice. Title v. Immigration and Naturalization Service, 322 F.2d 21 (9th Cir. 1953); Matias Rivera v. Gardner, 286 F.Supp. 305 (D.P.R.1968); Old Dutch Farms, Inc. v. Milk Drivers & Dairy Employees Local Union No. 584, 281 F.Supp. 971 (E.D.N.Y.1968); 1B Moore’s Federal Practice ¶ 0.405[12], at 791; 2 K. Davis, Administrative Law Treatise § 18.02 at 548 (1958). To like effect see Bronson v. Board of Education, 525 F.2d 344, 349 (6th Cir. 1975); Cooper v. Philip Morris, Inc., 464 F.2d 9, 10 (6th Cir. 1972). Professor Moore states the rule as follows: Although, on the whole, the doctrines of res judicata and collateral estoppel are strictly applied, they have been occasionally rejected or qualified in cases in which an inflexible application would have violated an overriding public policy or resulted in manifest injustice to a party. (Footnotes omitted). IB J. Moore, Federal Practice, H 0.405[11] (1974). Nothing in this opinion is intended to indicate any view on the part of this" }, { "docid": "6214255", "title": "", "text": "384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642 (1966). This court adopted that approach in Painters District Council No. 38 v. Edgewood Contracting Co., 416 F.2d 1081 (5th Cir. 1969). We held there that a prior determination of the National Labor Relations Board on a liability issue was res judicata in a subsequent damage suit between the same parties where the Board had conducted a full hearing, the parties had been represented by counsel, and both sides had had a full opportunity to present evidence and to cross examine witnesses. We recognized that Board proceedings and damage actions were separate remedies which could be utilized simultaneously; nevertheless, we held that res judicata was appropriate when one action had preceded the other. However, we cautioned that res judicata may apply to some administrative proceedings but not others and that each situation calls for careful examination. Res judicata was particularly appropriate in the Painters case because of the NLRB’s expertise in the area of labor disputes of the kind involved there. Even when the prior decision is made in a judicial, rather than an administrative, forum neither res judicata nor collateral estoppel is rigidly applied. Both defenses must be qualified or rejected when their use would contravene an overriding public policy or result in manifest injustice. Tipler v. E. I. duPont deNemours Co., supra. We hold that the district court was correct in granting Garner a de novo trial on all of his allegations of racial discrimination for two reasons. First, the scope of the administrative hearing was much narrower than that of Garner’s lawsuit. Second, although the procedural safeguards afforded in the Civil Service Commission hearing were satisfactory for its purpose, that body was not a competent forum for the resolution of federal claims of employment discrimination brought under Title VII and § 1981. Whereas in Painters, the precise liability issues presented to the court had been raised previously before the NLRB, here Garner’s complaint touched upon matters totally unrelated to his discharge and beyond the jurisdiction of the Civil Service Commission to consider. The Commission’s function was" }, { "docid": "22810584", "title": "", "text": "a motion to reconsider. I Collateral Estoppel and Res Judicata Appellant first argues that the appellee is precluded by res judicata and collateral estoppel from asserting that he was discharged because of racial prejudice since the cause of his discharge was previously litigated by the NLRB. We do not agree. Although frequently confused, res judicata and collateral estoppel are different theories which often lead to the same result. These rules have been distinguished in the following manner: * * * application of the doctrine of res judicata necessitates an identity of causes of action, while the invocation of collateral estoppel does not. Each doctrine, on the other hand, requires that, as a general rule, both parties to the subsequent litigation must be bound by the prior judgment. The essence of collateral estoppel by judgment is that some question or fact in dispute has been judicially and finally determined by a court of competent jurisdiction between the same parties or their privies. Thus the principle of such an estoppel may be stated as follows: Where there is a second action between parties, or their privies, who are bound by a judgment rendered in a prior suit, but the second action involves a different claim, cause, or demand, the judgment in the first suit operates as a collateral estoppel as to, but only as to, those matters or points which were in issue or controverted and upon the determination of which the initial judgment necessarily depended. IB Moore’s Federal Practice ¶0.441[2], at 3777 (footnotes omitted). Neither collateral estoppel nor res judicata is rigidly applied. Both rules are qualified or rejected when their application would contravene an overriding public policy or result in manifest injustice. Title v. Immigration and Naturalization Service, 322 F.2d 21 (9th Cir. 1953); Matias Rivera v. Gardner, 286 F.Supp. 305 (D.P.R.1968); Old Dutch Farms, Inc. v. Milk Drivers & Dairy Employees Local Union No. 584, 281 F. Supp. 971 (E.D.N.Y.1968); 1B Moore’s Federal Practice ¶ 0.405[12], at 791; 2 K. Davis, Administrative Law Treatise § 18.02, at 548 (1958). It is now accepted that both res judicata and collateral" }, { "docid": "23334915", "title": "", "text": "their application would contravene an overriding pub- lie policy or result in manifest injustice. Title v. Immigration and Naturalization Service, 322 F.2d 21 (9th Cir. 1953); Matias Rivera v. Gardner, 286 F.Supp. 305 (D.P.R.1968); Old Dutch Farms, Inc. v. Milk Drivers & Dairy Employees Local Union No. 584, 281 F.Supp. 971 (E.D.N.Y.1968); 1B Moore’s Federal Practice ¶ 0.405[12], at 791; 2 K. Davis, Administrative Law Treatise § 18.02 at 548 (1958). To like effect see Bronson v. Board of Education, 525 F.2d 344, 349 (6th Cir. 1975); Cooper v. Philip Morris, Inc., 464 F.2d 9, 10 (6th Cir. 1972). Professor Moore states the rule as follows: Although, on the whole, the doctrines of res judicata and collateral estoppel are strictly applied, they have been occasionally rejected or qualified in cases in which an inflexible application would have violated an overriding public policy or resulted in manifest injustice to a party. (Footnotes omitted). IB J. Moore, Federal Practice, H 0.405[11] (1974). Nothing in this opinion is intended to indicate any view on the part of this court as to the merits of the respective claims of LaFatch and MM to the $50,000. Neither do we make any factual determination. Our recitation of facts is nothing more than a summary of certain evidence introduced in the criminal trial of LaFatch. If the facts concerning the payment of $50,000 by appellant to LaFatch are as set forth above, the application of res judicata in the present case results in a manifest injustice. Res judicata would permit LaFatch to keep $50,000 which he received as a payoff. Appellant would lose $50,000 which it paid to LaFatch in collaboration with the FBI. Furthermore, application of res judicata in the present case would violate overriding public policy. Solicitation of bribes or payoffs in public matters is manifestly contrary to the public interest. In these times of increasing white collar crime, private citizens should be encouraged to cooperate with law enforcement officers in thwarting attempts at bribery and extortion. In the present case, it is asserted that private individuals reported to the Department of Justice what they" }, { "docid": "22584297", "title": "", "text": "(1964)]; 20 C.F.R. § 404.951. Under the doctrine of res judicata, the final decision may become the basis of denying subsequent applications. ’ Provision for disposition of claims on this ground is found in 20 C.F.R. § 404.937, which states in part: “The hearing examiner may, on his own motion, dismiss a hearing request, either entirely or as to any stated issue, under any of the following circumstances : “(a) Res judicata. Where there has been a previous determination or decision by the Secretary with respect to the rights of the same party on the same facts pertinent to the same issue or issues which has become final either by judicial affirmance or, without judicial consideration, upon the claimant’s failure timely to request reconsideration, hearing, or review, or to commence a civil action with respect to such determination or decision * * # ft Res judicata of administrative decisions is not encrusted with the rigid finality that characterizes the precept in judicial proceedings. See Farley v. Gardner, 276 F.Supp. 270, 272 (S.D.W. Va.1967). Application of the doctrine often serves a useful purpose in preventing relitigation of issues administratively determined, e. g., Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402, 60 S.Ct. 907, 84 L.Ed. 1263 (1940); but practical reasons may exist for refusing to apply it, e. g., United States v. Stone & Downer Co., 274 U.S. 225, 47 S.Ct. 616, 71 L.Ed. 1013 (1927). And in any event, when traditional concepts of res judicata, do not work well, they should be relaxed or qualified to prevent injustice. 2 Davis, Administrative Law, § 18.03 (1958). The regulations recognize that it is undesirable to attribute finality to every administrative decision. 20 C.F.R. §§ 404.957 and 404.958 provide in part: § 404.957: “An initial or reconsidered determination of the Administration or a decision of a hearing examiner or of the Appeals Council which is otherwise final * * * may be reopened: (b) [W] ithin 4 years after the date of the notice of the initial determination * * * upon a finding of good cause for reopening such determination" }, { "docid": "469990", "title": "", "text": "(1948). In deciding whether plaintiff’s claims are barred by res judicata, we must engage in a two-step analysis. First, we must decide whether the claims before this Court and those litigated in arbitration arise out of the same transaction or occurrence and seek recovery for the same injury, and whether plaintiff could have brought the claims it is now asserting, in the previous proceeding before the arbitration panel. Silcox v. United Trucking Service, Inc., 687 F.2d 848 (6th Cir.1982). Our second inquiry is whether the circumstances of this case render the general principles of res judicata inapplicable, as the Sixth Circuit has held that “[n]either collateral estoppel nor res judicata is rigidly applied. Both rules are qualified or rejected when their application would contravene an overriding public policy or result in manifest injustices.” Tipler v. E.I. du Pont de Nemours and Co., 443 F.2d 125, 128 (6th Cir.1971). Foremost, in our consideration of defendant’s motion are the recent pronouncements by the Supreme Court and the Sixth Circuit on the issue of the arbitrability of federal securities laws claims and the policy of providing a judicial forum for those claims. Therefore, we analyze the second inquiry, concerning whether there is a policy overriding the advantages of arbitration, before we determine whether the element of res judicata or collateral estoppel are technically satisfied in this case, as we believe such policy would have a bearing upon the preclusive effect of the arbitration award. We begin with the Supreme Court case of Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953) wherein the Court declined to compel arbitration of federal securities laws claims brought pursuant to section 12(2) of the Securities Act of 1933, despite the fact that the parties had entered into a predispute arbitration agreement and despite the fact that the Federal Arbitration Act, mandates that the district court should stay any action pending arbitration of claims “referrable to arbitration under an agreement in writing for such arbitration^]” 9 U.S.C. § 3. In Wilko, the Court concluded that, on balance, the policy inherent in the anti-fraud protection" }, { "docid": "2335668", "title": "", "text": "The United States appeared only to explain the factual ba sis on which it opposed the Cappaerts’ applications. Furthermore, the McCarran Amendment waives sovereign immunity only in cases in which the United States is a defendant and has been served with process. The United States was neither a defendant nor served with process in the proceedings before the State Engineer. Even if the United States had waived its sovereign immunity, we are not bound to give res judicata effect to the decision of an administrative body in a case of this kind. As the court said in Grose v. Cohen, 406 F.2d 823, 824 (4th Cir. 1969): “Res judicata of administrative decisions is not encrusted with the rigid finality that characterizes the precept in judicial proceedings. . . . Application of the doctrine often serves a useful purpose in preventing relitigation of issues administratively determined, . . . but practical reasons may exist for refusing to apply it, e. g., United States v. Stone & Downer Co., 274 U.S. 225, [47 S.Ct. 616, 71 L.Ed. 1013] (1927). And in any event, when traditional concepts of res judi-cata do not work well, they should be relaxed or qualified to prevent injustice. 2 Davis, Administrative Law, § 18.03 (1958).” Although the State Engineer may have expertise in the administration of Nevada’s water laws, there is no evidence that he is qualified to consider or decide the complex issues of federal law involved in this case. The State Engineer’s decision is not entitled to res judi-cata effect in this action. We affirm the decision of the District Court. The District Court held the water level should be maintained at 3.0 feet below the copper washer in order to preserve the pupfish in the Devil’s Hole pool. Pending this appeal, we permitted the Cappaerts to pump as long as the water level did not go below 3.3 feet. We remand this case to the District Court to determine whether, on the facts developed during the pendency of this appeal, the lower water level may be adequate to preserve the pupfish. We direct the District" }, { "docid": "4519345", "title": "", "text": "Cir. 1970). It is pertinent to observe, however, that the earlier view of some courts that the doctrine does not apply to administrative proceedings has been largely discredited. The Supreme Court, in United States v. Utah Construction and Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966) took occasion to point out that its decision therein was harmonious with general principles of collateral estoppel, stating, in part, that “Occasionally courts have used language to the effect that res judicata principles do not apply to administrative proceedings, but such language is certainly too broad. When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.” 384 U.S. at 421, 86 S.Ct. at 1559. [footnotes and citations omitted] See, also, Davis, Administrative Law Treatise, § 18.02, et seq., and cases there cited. Although application of the doctrine of res judicata to administrative decisions does, indeed, serve a useful purpose in preventing the relitigation of issues properly determined administratively it is not, where applicable, applied with the same rigidity as its judicial counterpart. “[Practical reasons may exist for refusing to apply it,” held the court in Grose v. Cohen, 406 F.2d 823 (4th Cir. 1969), and, continuing, “[I]n any event, when traditional concepts of res judicata do not work well, they should be relaxed or qualified to prevent injustice. 2 Davis, Administrative Law, § 18.03 (1958).” Particularly appropriate are such considerations to the case before us, requiring, as we have noted, that the government shall not recover an overpayment “if such recovery . . . would be against equity and good conscience.” But however guarded the application of the doctrine of administrative res judicata generally, its application in the case at bar is specified in the regulations of the agency before us. These, it is clear, do not demand administrative finality. The matter was the subject of extensive examination in Leviner v. Richardson, 443 F.2d 1338 (4th Cir. 1971), the" }, { "docid": "13111546", "title": "", "text": "tax proceedings between the same parties, involving claims for subsequent years similar to those which were determined in prior proceedings for prior years, were not based on the same cause of action as had been the subject of the prior determination. The Court therefore concluded that while the general rule of res judicata applied to tax proceedings between the same parties, involving the same claim and the same tax year, it did not apply to proceedings involving similar claims for subsequent tax years. Instead, the latter were governed by the narrower rule of collateral estoppel. See also United States v. Stone & Downer Co., 274 U.S. 225, 47 S.Ct. 616, 71 L.Ed. 1013 (1927), where the Court held that a judicial determination as to the proper classification of imported goods under tariff schedules was not res judicata in a subsequent action involving a subsequent importation of identical goods. In each of these cases, the Court stressed the public interest in the equality of administration of laws enacted by Congress and the danger, if res judicata were rigidly applied, of conferring a permanent preferred position under such laws on a particular litigant with resulting discrimination and injustice. Accord, Grandview Dairy, Inc. v. Jones, 157 F.2d 5, 9 (2d Cir.), cert. denied, 329 U.S. 787, 67 S.Ct. 355, 91 L.Ed. 675 (1946). As will be pointed out later, these considerations are particularly important here. I therefore hold that the case at bar is not governed by res judicata but by the narrower doctrine of collateral estoppel. It is quite plain that if the decisional law governing the application or enforcement of a statute of general application has been significantly changed since a prior judgment was rendered, re-litigation in a second suit of issues determined in the prior suit is not precluded by collateral estoppel. Commissioner of Internal Revenue v. Sunnen, supra; Blair v. Commissioner of Internal Revenue, supra; 1B J. Moore, Federal Practice ¶ 0.448 (2d ed. 1965); Restatement of Judgments § 70 (1942); Restatement (Second) of Judgments § 68.1(b) (ii) (Tent.Draft No. 1, 1973). As the Court pointed out in Sunnen," }, { "docid": "22584298", "title": "", "text": "the doctrine often serves a useful purpose in preventing relitigation of issues administratively determined, e. g., Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402, 60 S.Ct. 907, 84 L.Ed. 1263 (1940); but practical reasons may exist for refusing to apply it, e. g., United States v. Stone & Downer Co., 274 U.S. 225, 47 S.Ct. 616, 71 L.Ed. 1013 (1927). And in any event, when traditional concepts of res judicata, do not work well, they should be relaxed or qualified to prevent injustice. 2 Davis, Administrative Law, § 18.03 (1958). The regulations recognize that it is undesirable to attribute finality to every administrative decision. 20 C.F.R. §§ 404.957 and 404.958 provide in part: § 404.957: “An initial or reconsidered determination of the Administration or a decision of a hearing examiner or of the Appeals Council which is otherwise final * * * may be reopened: (b) [W] ithin 4 years after the date of the notice of the initial determination * * * upon a finding of good cause for reopening such determination or decision * * § 404.958: “ ‘Good cause’ shall be deemed to exist where: “(c) There is an error as to such determination or decision on the face of the evidence on which such determination or decision is based.” While the regulation is couched in terms of reopening a decision otherwise final, it also serves to identify decisions that should not be interposed to deny subsequent applications. A decision that is subject to being reopened provides an inappropriate bar. The dictates of equity and fundamental fairness that allow a decision containing error on the face of the evidence to be reopened preclude use of the same decision as a foundation for res judicata. It is apparent that in 1943 Grose suffered severe physical impairment. His unsuccessful venture in trucking followed by his unemployment casts doubt on his ability to engage in substantial gainful activity. Therefore, his competence to operate a paper route profitably is the crucial inquiry. Grose testified that he could not get out of his car and walk to his customers’ houses." }, { "docid": "6214256", "title": "", "text": "prior decision is made in a judicial, rather than an administrative, forum neither res judicata nor collateral estoppel is rigidly applied. Both defenses must be qualified or rejected when their use would contravene an overriding public policy or result in manifest injustice. Tipler v. E. I. duPont deNemours Co., supra. We hold that the district court was correct in granting Garner a de novo trial on all of his allegations of racial discrimination for two reasons. First, the scope of the administrative hearing was much narrower than that of Garner’s lawsuit. Second, although the procedural safeguards afforded in the Civil Service Commission hearing were satisfactory for its purpose, that body was not a competent forum for the resolution of federal claims of employment discrimination brought under Title VII and § 1981. Whereas in Painters, the precise liability issues presented to the court had been raised previously before the NLRB, here Garner’s complaint touched upon matters totally unrelated to his discharge and beyond the jurisdiction of the Civil Service Commission to consider. The Commission’s function was to assure that Garner had in fact breached police department regulations and had been dismissed for that reason and not because of racial discrimination. The Commission was not asked to remedy any discriminatory practices which might have occurred during Garner’s tenure as a police officer. Had the district court applied res judicata so as to bar Garner’s subsequent lawsuit, manifest injustice would have occurred because Garner would have been deprived of an opportunity to challenge the department’s transfer, assignment, and reevaluation practices. Application of res judicata would also have contravened an important public policy favoring private litigation as a means of eradicating employment discrimination. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), the Supreme Court recognized the strong congressional policy against depriving a Title VII litigant of his right to adjudicate his claim in the federal courts even when his claim has been previously submitted to final arbitration. The Court stressed that the federal courts possess “ultimate authority” for securing compliance with Title VII and that private litigants" }, { "docid": "19993769", "title": "", "text": "in which they advanced the trust fund theory for the first time. They argued that res judicata was inapplicable to their claim because of the change in the controlling case law. We were not persuaded that such a change had in fact occurred, but went on to observe, citing Chicot County, supra, that “The principles of res judicata would govern disposition of this case, even if there had been .. . a change in controlling case law.” 498 F.2d at 906. In summary, the thrust of the decisions discussed above is this: generally, a judgment on the merits — even if erroneous — will be deprived of its conclusive effect only if it is vacated, reversed, or set aside on direct appeal. See Moitie v. Federated Department Stores, Inc., 611 F.2d 1267 (9th Cir. 1980); 1B Moore’s Federal Practice (2d Ed.) ¶ 0.416[2], p. 2231. We are convinced, therefore, that the change in the law wrought by Monell, standing alone, does not preclude the application of res judicata to this case. That conclusion does not, however, end our inquiry, for “This court has held ... that ‘[n]either collateral estoppel nor res judicata is rigidly applied. Both rules are qualified or rejected when their application would contravene an overriding public policy or result in manifest injustice.’ Tipler v. E. I. du Pont de Nemours and Co., 443 F.2d 125, 128 (6th Cir. 1971).” Bronson v. Board of Education, 525 F.2d 344 (6th Cir. 1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1665, 48 L.Ed.2d 175 (1976). See also United States v. LaFatch, 565 F.2d 81 (6th Cir. 1977), cert. denied, 435 U.S. 971, 98 S.Ct. 1611, 56 L.Ed.2d 62 (1978); Ferguson v. Winn Parish Police Jury, 589 F.2d 173, 176 n.6 (5th Cir. 1979). We must determine whether the circumstances of this case render the general principles of res judicata inapplicable. In so doing, we look for guidance to our previous decisions. In Tipler v. E. I. du Pont de Nemours and Co., supra, we declined to apply the doctrine of res judicata to a Title VII claim which alleged racial" }, { "docid": "22810585", "title": "", "text": "is a second action between parties, or their privies, who are bound by a judgment rendered in a prior suit, but the second action involves a different claim, cause, or demand, the judgment in the first suit operates as a collateral estoppel as to, but only as to, those matters or points which were in issue or controverted and upon the determination of which the initial judgment necessarily depended. IB Moore’s Federal Practice ¶0.441[2], at 3777 (footnotes omitted). Neither collateral estoppel nor res judicata is rigidly applied. Both rules are qualified or rejected when their application would contravene an overriding public policy or result in manifest injustice. Title v. Immigration and Naturalization Service, 322 F.2d 21 (9th Cir. 1953); Matias Rivera v. Gardner, 286 F.Supp. 305 (D.P.R.1968); Old Dutch Farms, Inc. v. Milk Drivers & Dairy Employees Local Union No. 584, 281 F. Supp. 971 (E.D.N.Y.1968); 1B Moore’s Federal Practice ¶ 0.405[12], at 791; 2 K. Davis, Administrative Law Treatise § 18.02, at 548 (1958). It is now accepted that both res judicata and collateral estoppel can be applicable to decisions of administrative agencies acting in a judicial capacity. United States v. Utah Construction & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); Painters District Council No. 38 v. Edgewood Contracting Co., 416 F.2d 1081 (5th Cir. 1969); Pacific Seafarers, Inc. v. Pacific Far East Line, Inc., 131 U.S.App.D.C. 226, 404 F.2d 804 (D.C. Cir. 1968), cert. denied, 393 U.S. 1093, 89 S.Ct. 872, 21 L. Ed.2d 784 (1969); Fairmont Aluminum Co. v. Commissioner of Internal Revenue, 222 F.2d 622 (4th Cir.), cert. denied, 350 U.S. 838, 76 S.Ct. 76, 100 L.Ed. 748 (1955); 2 K. Davis, Administrative Law Treatise § 18.02, at 609 (Supp.1970). Cf. Safir v. Gibson, 432 F.2d 137 (2d Cir.), cert. denied, see 400 U.S. 850, 91 S.Ct. 57, 27 L.Ed.2d 88 (1970). Despite the possible applicability of these doctrines to administrative decisions, in the instant action it would be inappropriate to apply either. The issue here is whether appellee’s dismissal was in violation of Title VII of the Civil Rights Act" }, { "docid": "22943116", "title": "", "text": "the default judgment. See note 14 supra. The holding in Bass is a rare exception to the normal rules of collateral attack. 6 Moore’s, supra, at ¶ 55.09, p. 204 (“an occasional atypical case” not establishing a general rule); 7 id. at ¶ 60.25[2], p. 309-11. While the principle of Bass has full effect in this court, Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), it does not apply on this set of facts. No lesser ground than a judgment rendered in violation of due process will suffice for collateral attack in this case. Fred contends that collateral attack is allowed in order to avoid manifest injustice. Garner v. Giarrusso, 571 F.2d 1330, 1336 (5th Cir. 1978); Tipler v. E. I. duPont de Nemours and Co., 443 F.2d 125, 128 (6th Cir. 1971). The authorities cited for this proposition all arise in the administrative agency context, however, where principles of res judicata do not apply with as great a rigor but instead “the traditional doctrine ... [is] qualified or relaxed to whatever extent is desirable for making it a proper and useful tool for administrative justice.” K. Davis, Administrative Law Treatise § 18.03, p. 553 (1958). In civil court cases, while there might be isolated instances where the principles of res judicata do not apply with full force, see 1B Moore’s, supra, at ¶¶ 0.405[11], [12], there is no general equitable exception to the doctrine, Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 401, 101 S.Ct. 2424, 2429, 69 L.Ed.2d 103, 110 (1981), and the facts of this case do not fall within any of the developed exceptions, see Key v. Wise, 629 F.2d 1049, 1067 (5th Cir. 1980), cert. denied, - U.S. -, 102 S.Ct. 682, 70 L.Ed.2d 647 (1981); compare 1B Moore’s, supra, at ¶¶ 0.405[11], [12]. C. Jurisdiction over quasi-community property Virtually all of the property that was the basis for the property division judgment was located outside of California. The California court exercised jurisdiction to divide the property under California’s “quasi-community property” statute, which treats as community property all" } ]

[ { "docid": "8055873", "title": "", "text": "a fixed cash rental scheme. Id. at 526 (“In this case, whether the livestock operation flourished or was wiped out by drought or disease, whether cattle prices rose or fell, whether in short, Dickison’s activities were profitable or unprofitable, Donahoe’s rental income was unaffected.”); Heffley, 884 F.2d at 284 (“Whether farm prices fluctuated or crops flourished or died their rental income would be unaffected because those heirs were rentiers throughout the lease, not farmers who risked the variables of weather and market price.”); Martin, 783 F.2d at 84 (“Whether farm prices rose or fell, whether the crops planted on the farm flourished or were wiped out by cold weather or disease, whether in short the farm was productive or unproductive, prof itable or unprofitable, the taxpayers’ rental income would be unaffected. They were thus out of the farming business, and outside the scope of [section 2032A].”). Strong policy reasons thus exist for not extending section 2032A in the manner advocated by Williamson. Finally, much of the emotive force behind Williamson’s position is attributable to the feeling one gets, upon first look, that the IRS is making a hypertechnical distinction. The same family member farmed the land before Ms. Williamson’s death and after. On the surface, nothing seems to have changed to justify the alteration in tax treatment. But upon closer examination, it becomes apparent that things have changed. Prior to Ms. Williamson’s death, Harvey Williamson farmed under a crop-share rental agreement. The owner of the land thus still faced the risks of farming. After Ms. Williamson’s death, the owner of the land (Beryl Williamson) is receiving a fixed cash rental for the land. The owner and person seeking to enjoy the preferential tax treatment afforded by § 2032A thus faces none of the risks of farming and, in fact, is not himself a family farmer. A sound rationale thus supports the IRS’s distinction for tax purposes between the pre- and post-death uses of the Williamson property. Cf. Estate of Trueman v. United States, 6 Cl.Ct. 380, 1984-2 U.S. Tax Cas. (CCH) ¶ 13,590, at 86,180 (1984) (“Where the use made" } ]

[ { "docid": "10381817", "title": "", "text": "Income Tax Regs. Thus, the amounts were properly included in gross income by respondent. Respondent also included in petitioners’ gross income gross sales reflected in their North Dakota sales and use tax returns filed by Loren. Petitioners contend that these amounts do not represent sales but rather purchases that were used by them in their farming operations and for which they paid no sales tax at the time of purchase. However, we found as a fact that petitioners operated a farm equipment repair service during the years in issue. Petitioners have failed to produce credible evidence to rebut the presumption of the correctness of respondent’s determination to that effect. We hold that respondent did not err in including these amounts in gross income. Petitioners argue alternatively that respondent should have included in gross income only the profit from their blacksmith operation and not gross sales. However, petitioners have presented no evidence with respect to their costs, and therefore have not met their burden of proof that the gross sales figures were not properly included in gross income. Rule 142(a), Tax Court Rules of Practice and Procedure. Petitioners also assert that respondent erred in computing their farm business expenses. Respondent computed farm business expenses for each year by subtracting the checks which reflected transfers of funds to savings accounts or which were used to purchase securities or items determined to be capital expenditures from the total checks that cleared petitioners’ checking account. From this amount respondent subtracted an additional $2,400 for personal living expenses. Petitioners contend that $2,400 was an unreasonably high personal living allowance. We have found that petitioners’ lifestyle was frugal in the years at issue. They grew or hunted much of what they ate, spending only about $400 per year for groceries. However, they deducted as business expenses numerous amounts which we found to be personal expenses. These expenses included heating fuel, electricity, and clothing expenses. With some adjustments, we have found that petitioners’ computation of personal living expenses maintained by them is correct. We have therefore found the personal expenses as indicated in our findings of fact." }, { "docid": "16798139", "title": "", "text": "F.2d 336 (5th Cir. 1961); Vaira v. Commissioner, 52 T.C. 986 (1969), revd. on other grounds 444 F.2d 770 (3d Cir. 1971); Doll v. Commissioner, 358 F.2d 713 (3d Cir. 1966), affg. per curiam a Memorandum Opinion of this Court; Lucas v. Pilliod Lumber Co., 281 U.S. 245 (1930). Nor can the signature on the letter attached to the return be considered an imputed signature on the return itself. Cf. Vaira v. Commissioner, supra; Brafman v. United States, 384 F.2d 863, 868 (5th Cir. 1967). We therefore conclude that the assessment against petitioner of any income tax deficiency for the taxable year 1971 was not barred by the statute of limitations contained in section 6501(a) on June 18, 1976, when respondent issued the notice of deficiency. In his petition, petitioner contests the method by which respondent calculated petitioner’s tax liability for taxable years 1971 through 1974. The parties have stipulated that respondent’s calculation of petitioner’s gross income properly included petitioner’s wages for all 4 years and income from the rental of a farm for 1971,1972, and 1973. The statutory notice of deficiency shows that respondent also included in petitioner’s gross income for taxable year 1974 income allegedly received by petitioner from the rental of the farm during that year and included income allegedly received by petitioner from the rental of the brick house during 1971, 1972, 1973, and 1974 in petitioner’s gross income for each of those taxable years. During the trial, petitioner testified that he had sold the brick house during 1971 and had received no rental income from the house during any of the taxable years at issue. Petitioner also testified that he received no rent from the farm in 1974 and, in fact, had been forced to evict a tenant who had been occupying the premises unbeknownst to petitioner. We found petitioner to be an honest, forthright individual whose testimony was eminently credible. Accordingly, we find that petitioner did not receive income from the rental of the brick house during 1971, 1972,1973, or 1974, or income from the rental of the farm during 1974. Consequently, the only" }, { "docid": "7803987", "title": "", "text": "fees and boarding expenses of brood mares at other farms; veterinary and other medical expenses; costs associated with operating machinery; insurance; bank interest and charges; electricity and telephone; rent; local taxes; carriage and freight for transporting horses; motor car expenses; horseshoeing; costs attributable to training horses at other training farms; straw and peat moss; management fees; saddlery; periodicals dealing with horse breeding, training, and racing; stationery and postage; gratuities to employees; travel and entertainment; subscription and entry fees for registration of horses in the stud book; tools and short-life equipment; advertising; commissions and fees associated with the sale of cattle; legal expenses; rental of special machinery; and fees associated with horse races. Appellant did not include in her gross farm expenses those expenses associated with the sale of horses, such as the commissions and fees related to those sales. Appellant correctly excluded from her gross farm expenses those expenses attributable to her personal activities. In each of the relevant tax years, appellant’s gross farm expenses exceeded her gross farm income, resulting in a net farm loss. On appellant’s returns these losses were used to offset United States-source income and foreign capital gains included in taxable income. On the theory that section 911 did not apply to service-capital business that operated at a loss, appellant did not exclude her foreign (section 911) earned income from her gross income with the attendant disallowance of expense deductions. Upon audit, the Commissioner determined that 30% of appellant’s gross farm income was compensation for her personal services on the farm, and therefore should have been excluded from her gross income as income earned abroad within the meaning of section 911. Likewise, the Commissioner determined that 30% of appellant’s gross farm expenses was allocable to and chargeable against this excluded earned income, and therefore should not have been deducted. These determinations reduced by 30% appellant’s net farm loss in all but one of the tax years in question. Based on this reduction in offsetting losses, the Commissioner calculated a deficiency in appellant’s tax payments totalling in excess of $188,-000. The Tax Court upheld the Commissioner. Brewster" }, { "docid": "10407720", "title": "", "text": "30 percent of petitioner’s gross farm income was excludable from gross income under section 911 as earned income. He further determined that the portion of gross farm expenses allocable to the excludable income, and therefore nondeductible, was the same percentage of gross expenses that excludable income was of gross farm income. The net effect of respondent’s determination (modified in accordance with n. 2 supra) is the reduction of petitioner’s net farm loss for each year, except 1963, by 30 percent.4 Petitioner’s farming expenses for the years in question were as follows: wages, social insurance for employees, feed for horses, grass seed for pastures, general supplies, repairs, fertilizers, stud fees and boarding expenses of brood mares at other stud farms, veterinary and medicine expenses, machinery operating expenses, insurance, bank interest and charges, electricity, telephone, rent, local taxes, carriage and freight for transporting horses, motor car expenses, horseshoeing, cost of training horses at other farms, straw, peatmoss, management fees, saddlery, periodicals, stationery, postage, gratuities to employees, travel and entertainment, subscription and entry fees for the registration of horses in stud book, tools and short life equipment, advertising, cattle buyers’ commissions and fees, legal expenses, rental of special machinery, and entrance and jockey fees for horse races. No part of these expenses claimed by petitioner was attributable to her personal expenditures. OPINION Section 911 affords a tax benefit to citizens who are residents of a foreign country to the extent that they realize income abroad as a result of their personal services (earned income) rather than as a return on capital investments. In the case of a service-capital business, the statute provides that \"a reasonable allowance as compensation for the personal services rendered by the taxpayer, not in excess of 30 percent of his share of the net profits of such trade or business, shall be considered as earned income.” On a prior occasion, this same taxpayer asked us to decide the identical question initially before us herein, namely, whether, under section 911, a citizen residing outside of the United States can have excludable \"earned income” from a farming proprietorship in which both" }, { "docid": "10381816", "title": "", "text": "was for a truck purchased by petitioners from Westland Oil Co. The second check, in the amount of $1,000, was made payable to Arden Gajewski at Loren’s instructions. That check was for grain from petitioners’ farm. Petitioners assert that the grain belonged to their mother, and that before her death she had instructed them to deliver the proceeds from the sale of the grain to their brother Arden. We do not, however, believe the testimony and have not so found. In light of these facts, we conclude that both checks were gross income to the partnership and respondent properly included them in petitioners’ distributive share of net farm income. Respondent also included interest income in petitioners’ gross income. Petitioners contend that since they were not notified by the bank of these payments that these payments were not income. They also contend that inclusion of these items is not proper under the cash method. We disagree; petitioners were in constructive receipt of the interest when it was credited to their accounts by the bank. Sec. 1.451-2(a), Income Tax Regs. Thus, the amounts were properly included in gross income by respondent. Respondent also included in petitioners’ gross income gross sales reflected in their North Dakota sales and use tax returns filed by Loren. Petitioners contend that these amounts do not represent sales but rather purchases that were used by them in their farming operations and for which they paid no sales tax at the time of purchase. However, we found as a fact that petitioners operated a farm equipment repair service during the years in issue. Petitioners have failed to produce credible evidence to rebut the presumption of the correctness of respondent’s determination to that effect. We hold that respondent did not err in including these amounts in gross income. Petitioners argue alternatively that respondent should have included in gross income only the profit from their blacksmith operation and not gross sales. However, petitioners have presented no evidence with respect to their costs, and therefore have not met their burden of proof that the gross sales figures were not properly included in" }, { "docid": "17765220", "title": "", "text": "First, the farm corporations would be entitled to the expenses of raising the rental animals to the weight these animals attained at the time sufficient incidents of beneficial ownership in the animals passed to petitioners. Second, the farm corporations would recognize a gain on the transferring of beneficial ownership in the rental animals to petitioners. This gain is a consequence of the corporations’ satisfying their rental obligations with a payment of appreciated property. United States v. Davis, 370 U.S. 65 (1962); J. Freeland, S. Lind & R. Stephens, Fundamentals of Federal Income Taxation 252 (5th ed. 1985). Finally, because the corporations are paying rent, rental expense deductions are in order. Sec. 1.61-4(a), Income Tax Regs., can be traced to a 1918 forbear. In defining gross farm income, T.D. 2690, Regs. 33, art. 4, par. 31 (1918), provided that, “Rents received in crop shares shall likewise be returned as of the year in which the crop shares are reduced to money or a money equivalent.” Accrual basis taxpayers may also take advantage of the postponement of income recognition on crop shares. See sec. 1.61-4(b), Income Tax Regs. Additionally, rents received in the form of livestock have qualified under the crop-share recognition rule. See Rev. Rul. 64-289, 1964-2 C.B. 173, 174; cf. Tatum v. Commissioner, 46 T.C. 736, 741 (1966), affd. 400 F.2d 242 (5th Cir. 1968). Finally, through their employment, managerial positions, and stock ownership, petitioners have participated heavily in the operation and management of their closely held farm corporations. These actions qualify petitioners as being engaged in the business of farming (see secs. 1.61-4(d) and 1.175-3, Income Tax Regs.), and, consequently, permit petitioners to take advantage of the crop-share recognition rule of sec. 1.61-4(a), Income Tax Regs. See Estate of Davison v. United States, 155 Ct. Cl. 290, 301, 292 F.2d 937, 942 (1961). In reaching this decision, we have looked at the actions of husband and wife together. In deciding that petitioners may take advantage of the crop-share recognition rule, we, nonetheless, caution that: “It is true that for many purposes the Code and regulations provide that sharecrop landlords" }, { "docid": "17765221", "title": "", "text": "income recognition on crop shares. See sec. 1.61-4(b), Income Tax Regs. Additionally, rents received in the form of livestock have qualified under the crop-share recognition rule. See Rev. Rul. 64-289, 1964-2 C.B. 173, 174; cf. Tatum v. Commissioner, 46 T.C. 736, 741 (1966), affd. 400 F.2d 242 (5th Cir. 1968). Finally, through their employment, managerial positions, and stock ownership, petitioners have participated heavily in the operation and management of their closely held farm corporations. These actions qualify petitioners as being engaged in the business of farming (see secs. 1.61-4(d) and 1.175-3, Income Tax Regs.), and, consequently, permit petitioners to take advantage of the crop-share recognition rule of sec. 1.61-4(a), Income Tax Regs. See Estate of Davison v. United States, 155 Ct. Cl. 290, 301, 292 F.2d 937, 942 (1961). In reaching this decision, we have looked at the actions of husband and wife together. In deciding that petitioners may take advantage of the crop-share recognition rule, we, nonetheless, caution that: “It is true that for many purposes the Code and regulations provide that sharecrop landlords are to be treated as farmers and the crop shares they receive as rents are to be treated as farmers’ harvested crops. * * * However, the analogy between farmers and sharecrop landlords is not complete and we think the receipt of the crop shares * * * result[s] in the receipt of rental income * * * and [doesj not represent unrealized appreciation in the value of property. [Tatum v. Commissioner, 46 T.C. at 739; fn. refs, omitted.]” In receiving livestock shares, petitioners act in the capacity of landlords. They are not operating farmers receiving the benefits of their own handiwork. The livestock shares petitioners receive represent “payment[s] by the tenant[s] for the use of the [dams] [and] are rental income assets no less than money paid for the same purpose.” Tatum v. Commissioner, 400 F.2d at 247. In discerning the meaning of a particular phrase, we have often examined the meaning of that given to analogous wording. Cf. Goldstein v. Commissioner, 89 T.C 535, 544 (1987); Retired Teachers Legal Defense Fund, Inc. v." }, { "docid": "23177696", "title": "", "text": "A “family farmer” is an: individual or individual and spouse engaged in a farming operation whose aggregate debts do not exceed $1,500,000 and not less than 80 percent of whose ... debts ... arise out of a farming operation owned or operated by such individual or such individual and spouse, and such individual or such individual and spouse receive from such farming operation more than 50 percent of such individual’s or such individual and spouse’s- gross income for the taxable year preceding the taxable year in which the case concerning such individual or such individual and spouse was filed.... 11 U.S.C. § 101(17) Farming operation “includes farming, tillage of the soil, dairy farming, ranching, production or raising of crops, poultry, or livestock, and production of poultry or livestock products in an unmanufactured state”. 11 U.S.C. § 101(20). Two issues arise, in applying the above definitions: what is included as gross income, and what is included in that portion of gross income considered to be derived from a farming operation? The Seventh Circuit in In re Wagner, 808 F.2d 542 (7th Cir.1986) held that for purposes of determining if a debtor is exempt from an involuntary petition under the farming exception, see 11 U.S.C. § 303(a); 11 U.S.C. § 101(19), gross income for purposes of the calculation is equated to gross income under the tax code. However, the Seventh Circuit only a couple of months later, included money received from sale of farm machinery in its gross income calculation. In re Armstrong, 812 F.2d 1024, 1027 (7th Cir.1987). The facts do not reflect whether this property had any depre-ciable basis remaining, but if it did, only the amount received above the adjusted basis would constitute income for tax purposes, see 26 U.S.C. § 1245, while the Armstrong court appeared to include all of the income as income for purposes of its calculation. The Wagner court, while recognizing the deficiencies and inadequacies of its approach in using taxable gross income, decided to establish this approach because of the simplicity and certainty which it incorporated into the Bankruptcy Code. While there certainly is" }, { "docid": "20016537", "title": "", "text": "Amizona, for the taxable year 1960. Eespondent recognizes that Amizona was a dependent of petitioner within the meaning of section 152 and allowed petitioner, as a medical expense deduction for 1960, the amounts which respondent determined petitioner spent for Amizona’s medical care in that year. See sec. 213 (a) (1) (A) and sec. 1.213-1 (a) (3) (i), Income Tax Eegs. Amizona was over 65 years of age in 1960, and, pursuant to the foregoing provisions of the Code and regulations, petitioner is entitled to deduct as medical expenses the amounts which he spent for Amizona’s medical care despite the fact that she may have had gross income of $600 or more in 1960, since it is admitted that petitioner furnished over one-half of her support and that she otherwise qualified as petitioner’s dependent. As respondent stated in the notice of deficiency, she was petitioner’s “Economic dependent.” But for petitioner to be entitled to an exemption deduction for Amizona she must have had gross income of less than $600 in 1960. Sec. 151 (e) (1) (A). Eespondent determined that Amizona had gross income in excess of $600 in that year; therefore, the burden of proof is upon petitioner to demonstrate that Amizona had gross income of less than $600 in 1960. The issue turns on whether Amizona realized capital gain in 1960 on the sale of her one-half interest in the farm which, when added to her rental income, equaled $600 or more. We are satisfied that the rental income was the only gross income received by Amizona in 1960 other than any gain she may have realized from the sale of the one-half interest in the farm, and respondent does not contend otherwise. Under date of June 10, 1960, Amizona executed a deed conveying her interest in the farm to her son, Hoyt. The stated consideration was “Ten dollars and other valuable consideration,” and Federal documentary stamps attached to the deed indicate a consideration of between $6,500 and $7,000. If Amizona did, in fact, receive $6,500 for her interest in the farm in 1960, we must hold for respondent on" }, { "docid": "16798140", "title": "", "text": "and 1973. The statutory notice of deficiency shows that respondent also included in petitioner’s gross income for taxable year 1974 income allegedly received by petitioner from the rental of the farm during that year and included income allegedly received by petitioner from the rental of the brick house during 1971, 1972, 1973, and 1974 in petitioner’s gross income for each of those taxable years. During the trial, petitioner testified that he had sold the brick house during 1971 and had received no rental income from the house during any of the taxable years at issue. Petitioner also testified that he received no rent from the farm in 1974 and, in fact, had been forced to evict a tenant who had been occupying the premises unbeknownst to petitioner. We found petitioner to be an honest, forthright individual whose testimony was eminently credible. Accordingly, we find that petitioner did not receive income from the rental of the brick house during 1971, 1972,1973, or 1974, or income from the rental of the farm during 1974. Consequently, the only remaining issues relating to respondent’s computation of the income tax deficiencies relate to whether petitioner was entitled to claim itemized deductions, whether he could properly claim dependency exemptions for all of his children, and whether he can now elect to file a joint return for any of the taxable years in issue. In his petition, petitioner alleges that respondent erred in calculating the tax due by allowing only the standard deduction because “there may be other deductions available which would be more advantageous to the petitioner.” At the trial, petitioner proffered no evidence of entitlement to any itemized deductions. Accordingly, we view this issue as having been abandoned by petitioner. Petitioner also claims entitlement to section 151(e) dependency exemptions as follows: three for 1971 and 1972 and two for 1973 and 1974. Petitioner testified at length about the claimed dependents, his children. This testimony shows that the oldest child, whom petitioner claims as a dependent for 1971 and 1972, attended college on the G.I. Bill of Rights during those years. He was 26 years old" }, { "docid": "23177698", "title": "", "text": "merit to these reasons, this court does not believe that judicial economy, procedural convenience, and predictability should be placed above the flexible nature of the Bankruptcy Code, and the objective of reaching just and equitable results for both parties. The circumstances of each case shall be considered because “gross income” is not an accounting term capable of precise definition. In re Wagner, 808 F.2d at 548. It is this court’s opinion, that the Debtors’ 1986 gross income includes the following: Amount Source of Income $ 3,803.00 Rhodell Rott wages $19,326.00 Direct farming income $10,041.00 Hieb payment $15,440.00 Farmland and equipment rental from son $11,910.00 Bismarck property rental $60,520.00 Total gross income Aetna argues that the $60,000.00 forgiveness of Norwest indebtedness should constitute gross income, because it is income for tax purposes. While it may be income for tax purposes, the court is not convinced by Aetna’s argument. No cash was received by the Debtors in consequence of this transaction. Furthermore, a debtor should not be penalized for attempting to satisfy creditors pre-petition; creditors with unsecured indebtedness, such as Aet-na, are primary beneficiaries of any pre-pe-tition debt voluntarily forgiven. Moreover, were the forgiven debt included as gross income, the court would probably include it as income derived from that of a farming operation, as it is wholly related to the Debtors’ farming activities. Aetna also argues that less than 50 percent of the Debtors’ income is derived from a farming operation. The parties do not dispute that the $11,910.00 Bismarck rental income and the $3,803.00 off farm wages are not income derived from a farming operation. Likewise, the parties do not dispute that $19,326.00 is farm income. The parties do, however, dispute whether the Hieb payment and the farmland and equipment rents constitute farm or non-farm income. Aetna relies heavily on Armstrong v. Corn Belt Bank, 55 B.R. 755 (C.D.Ill.1985) in support of its argument that farm and equipment rental income and interest on a contract for deed do not constitute farm income. The District Court in Armstrong held that cash rent income for farmland received up-front is not included as" }, { "docid": "10381815", "title": "", "text": "receipts and disbursements method of accounting. Respondent is not bound by the agreements or preliminary reports of his agents. Such informal agreements are not binding and have no legal effect. Botany Worsted Mills v. United States, 278 U.S. 282 (1929). Respondent is not estopped from requiring use of the cash method of accounting. 4. Computation of Gross Income and Expenses The next question we must decide is whether respondent erred in his computation of gross income and expenses. Generally, the gross income of a farmer is the amount of cash and the value of merchandise or other property received during the taxable year from the sale of livestock and produce which he raised. Sec. 1.61-4(a)(l), Income Tax Regs. Here, petitioners received checks in payment for their grain. They contest only the inclusion of two checks in the gross income of the partnership. The first, in the amount of $1,618.05, was in exchange for grain from petitioners’ farm and was made payable to Westland Oil Co. at the instructions of one of the petitioners. The check was for a truck purchased by petitioners from Westland Oil Co. The second check, in the amount of $1,000, was made payable to Arden Gajewski at Loren’s instructions. That check was for grain from petitioners’ farm. Petitioners assert that the grain belonged to their mother, and that before her death she had instructed them to deliver the proceeds from the sale of the grain to their brother Arden. We do not, however, believe the testimony and have not so found. In light of these facts, we conclude that both checks were gross income to the partnership and respondent properly included them in petitioners’ distributive share of net farm income. Respondent also included interest income in petitioners’ gross income. Petitioners contend that since they were not notified by the bank of these payments that these payments were not income. They also contend that inclusion of these items is not proper under the cash method. We disagree; petitioners were in constructive receipt of the interest when it was credited to their accounts by the bank. Sec. 1.451-2(a)," }, { "docid": "10407719", "title": "", "text": "stud groom and head lad were left in charge of the breeding and racing functions. Petitioner performed all of the secretarial work. She employed an accountant to maintain Palmerstown’s books and records. He also supervised planting, cattle grazing, and farm equipment operations. Petitioner supervised and directed the sale of the horses at Palmerstown. For the years 1962 through 1969, petitioner realized the following income and expenses from the farming operation: Gross Gross Net farm farm farm Year income expenses loss 1962. $83,155 $224,868 $141,713 1963. 123,502 235,717 112,215 1964. 38,238 234,241 196,003 1965. 55,647 273,408 217,761 1966. 64,070 290,674 226,604 1967. 58,947 299,391 240,444 1968. 48,809 262,685 213,876 1969. 57,840 288,391 230,551 On her Federal tax returns for each of these years, petitioner reported all of her gross farm income and deducted all of her farming expenses. Her gain from the sale of horses was reported separately as long-term capital gain. Thus, she offset her U. S. source income with 100 percent of the losses she sustained from her foreign business. The respondent determined that 30 percent of petitioner’s gross farm income was excludable from gross income under section 911 as earned income. He further determined that the portion of gross farm expenses allocable to the excludable income, and therefore nondeductible, was the same percentage of gross expenses that excludable income was of gross farm income. The net effect of respondent’s determination (modified in accordance with n. 2 supra) is the reduction of petitioner’s net farm loss for each year, except 1963, by 30 percent.4 Petitioner’s farming expenses for the years in question were as follows: wages, social insurance for employees, feed for horses, grass seed for pastures, general supplies, repairs, fertilizers, stud fees and boarding expenses of brood mares at other stud farms, veterinary and medicine expenses, machinery operating expenses, insurance, bank interest and charges, electricity, telephone, rent, local taxes, carriage and freight for transporting horses, motor car expenses, horseshoeing, cost of training horses at other farms, straw, peatmoss, management fees, saddlery, periodicals, stationery, postage, gratuities to employees, travel and entertainment, subscription and entry fees for the registration of" }, { "docid": "10418649", "title": "", "text": "of the Law of Contracts, sec. 420; 1 R. C. L., p. 176 and ff. Respondent’s determination under this issue is reversed. FINDINGS OF FACT. Issue %. — During the taxable year petitioner owned and operated farms in the States of South Dakota and Minnesota and, in addition, owned and rented farms in the States of Iowa and Colorado. He consistently reported farm income partly on the cash basis and partly on an inventory basis. The farm income is on a cash basis and the costs and expenses are on a cash basis, except for the livestock, which is inventoried. Petitioner reported his farm income for the taxable year as follows: Sales of livestock, fair premiums, etc-$42,019.21 Cost of products sold: Inventories at beginning of year_$28,409.50 Purchases_ 587.07 28,996.57 Less inventories at end of year [sic]_ 34,404.50 - 6,407.93 Gross profit_ 47,427.14 Other income: Soil conservation payments, etc_ 3,939.58 Gross income_ 51,366. 72 Expenses: Advertising_ $2,872. 37 Board and meals_ 1, 223. 95 Feed and seed_ 5, 300. 50 Gasoline and oil_ 2,394.12 Insurance_ 398.09 Labor--- 14,189. 01 Loss on dead horses_ 281.25 Rent- 875.00 Repairs • to buildings- 1, 714. 92 Repairs to machinery_ 2,458. 91 Taxes_ 2, 295. 67 Depreciation_ 5,125. 97 Unclassified_ 1, 889. 01 Fair expenses: Freight and drayage_ 73.70 Unclassified_ 280.06 - 41,372. 53 Net profit. 9,994.19 On his farm at Parker, South Dakota, petitioner raised for sale, for breeding purposes only, registered Hereford cattle. During the taxable year petitioner sold five registered cows and one registered bull to one Dwan of Minneapolis and received therefor Dwan’s promissory note in the face amount of $2,750, payable in 1942. This note was worth its face value at the date of its receipt by petitioner in 1941. At the time of the sale, petitioner orally guaranteed Dwan that the cows had been mated to a particular bull and that they would have live and standing calves. The note was paid by Dwan in 1942, but petitioner allowed an adjustment of $75 because one of the calves was black. Petitioner did not report any part of the $2,750" }, { "docid": "18930571", "title": "", "text": "burden of producing evidence from which a proper determination can be made. Most of the information required under section 20.2032A-8(a)(3), Estate Tax Regs., can be ascertained from petitioner’s amended Federal estate tax return and the notice of election submitted with the return. However, with respect to the section 20.2032A-8(a)(3)(viii), Estate Tax Regs., method of determining special value based on use, petitioner failed to supply the information and documentation necessary to substantiate the special value based on the use of the property. In determining special value based on use, section 2032A provides several methods for valuing farms. Sec. 2032A(e)(7); sec. 2032A(e)(8); sec. 20.2032A-4, Estate Tax Regs. The first method, capitalization of rents, measures the present value of the future cash-flows from the real property by using cash rent figures for the last 5 years. Sec. 2032A(e)(7)(A). The capitalization of rents formula is the excess of the average annual gross cash rental for comparable land used for farming purposes and located in the locality of such farm over the average annual State and local real estate taxes for such comparable land divided by the average annual effective interest rate for all new Federal Land Bank loans. Each average annual computation shall be made on the basis of the 5 most recent calendar years ending before the date of decedent’s death. Sec. 2032A(e)(7)(A); sec. 20.2032A-4(a), Estate Tax Regs. Gross cash rental is the amount of cash received during the year for the use of actual tracts of comparable farmland in the same locality, undiminished by any expenses or liabilities associated with the farm operation. Sec. 20.2032A-4(b)(1), Estate Tax Regs. In using this method, the executrix must identify to the Internal Revenue Service actual comparable property for all specially valued property and cash rentals from that property. Sec. 20.2032A-4(b)(2)(i), Estate Tax Regs. If it is established that there is no comparable land from which the annual gross cash rentals may be determined, then the average-net-share-rental method may be used. Sec. 2032A(e)(7)(B)(i). The second method of valuation under section 2032A is prescribed under section 2032A(e)(8). This method may be used when it is established that" }, { "docid": "10407737", "title": "", "text": "characterized as dictum. See 473 F.2d at 164 n.6. Respondent determined that the amount of gross farm expenses to be disallowed is— Excluded earned income x Gross farm expenses Gross farm income Petitioner argues that even if this formula is correct, the amount of gross farm expenses to be plugged in should not include an amount attributable to gain from the sale of horses. Petitioner reasons that because such gain, subject to beneficial capital gain treatment under section 1231, was not included in the gross farm income for purposes of computing earned income, no part of the expenses attributable to the horses sold should be disallowed as being allocable to the excluded earned income. Because petitioner cannot identify the expenses relating to the horses sold, which she would insulate from the proportional disallowance, she seeks to accomplish her objective by arguing that the amount of section 1231 gain realized each year should be added to the amount of gross farm income used by respondent in the denominator of the fraction previously noted. The fact that the amount of such gain was not treated as part of gross income for purposes of computing excludable earned income is of no relevance in light of our rejection of the mechanical application of any percentage of gross income in arriving at such computation and our conclusion that petitioner has failed to carry her burden of proof that the amount excluded did not represent \"reasonable allowance as compensation for [petitioner’s] personal services.” As for petitioner’s contention that a certain portion of her gross farm expenses should be immune from the operation of the disallowance because a portion of such expenses was attributable to horses sold, we disagree. On her tax returns, petitioner offset the gain from such sales with expenses clearly identifiable therewith (e.g., commissions). Other expenses relating to such horses were basically breeding, racing, or maintenance costs and the fact of the matter is that petitioner maintained many, if not all, of the horses sold for breeding and racing, activities generating ordinary gross farm income through the combination of capital input and petitioner’s personal" }, { "docid": "18937216", "title": "", "text": "in the amounts set forth in the foregoing table. Of the check in the amount of $13,646.01, only $10,234.51 belonged to petitioner, and of the check in the amount of $12,355.67, only $9,266.75 belonged to him. The remainder of those two checks belonged to A. H. Buxkemper, the owner of Farm No. B-233. A total amount of $45,376.48 from this sale was reported on petitioner’s 1974 joint Federal income tax return. Respondent determined that petitioners’ reported gross income for 1973 should be increased by $45,376.48. OPINION Section 451 prescribes the general rule that “any item of gross income shall be included in the gross income for the taxable year in which received by the taxpayer” unless, under the taxpayer’s method of accounting, such amount is “properly accounted for as of a different period.” Section 1.451-l(a), Income Tax Regs., provides that a taxpayer, such as petitioner, who uses the cash receipts and disbursements method of accounting, shall include in gross income amounts “when actually or constructively received.” Section 1.451-2(a), Income Tax Regs., explains the constructive receipt concept as follows: Income although not actually reduced to a taxpayer’s possession is constructively received by him in the taxable year during which it is credited to his account, set apart for him, or otherwise made available so that he may draw upon it at any time, or so that he could have drawn upon it during the taxable year if notice of intention to withdraw had been given. However, income is not constructively received if the taxpayer’s control of its receipt is subject to substantial limitations or restrictions. Respondent maintains that, under this regulation, petitioner constructively received the cotton crop proceeds in question in 1973. He argues that petitioner’s deferred payment agreements were not bona fide arm’s-length agreements and thus did not shield petitioner from the receipt of income. Further, respondent contends that the Slaton Co-op Gin was petitioner’s agent in the sale of the cotton, and the gin’s receipt of the sale proceeds was, for tax purposes, the equivalent of petitioner’s receipt thereof. Alternatively respondent argues that failure to include the 1973 cotton" }, { "docid": "17765205", "title": "", "text": "of the unprovided calves. The Strongs’ cow lease agreement did not, however, provide that Four Strong, Ltd., was to incur further costs or bear the risk of loss from death associated with raising the calves it was to transfer to the Strongs to a weight in excess of that which the animals had attained at the time the Strongs received legal title to these calves. Based on these facts, we consequently find that the Strongs acquired sufficient incidents of beneficial ownership in their replacement calves at the time they acquired legal title to these animals. See Grodt & McKay Realty, Inc. v. Commissioner, supra. It was at this point, then, that the Strongs realized rental income from their acquisition of these calves. When Must Petitioners Recognize This Rental Income? As above noted, our deciding the moment of rental income realization does not end our inquiry. We must determine when the income realized must be recognized for purposes of income tax reporting. Petitioners argue that their recognition of the realized income is postponed under section 1.61-4(a), Income Tax Regs. In pertinent part, that regulation reads, “Crop shares (whether or not considered rent under State law) shall be included in gross income as of the year in which the crop shares are reduced to money or the equivalent of money.” [The regulation] accords to sharecrop landlords the privilege of waiting until the crop shares are reduced to money before recognizing the income. This accounting procedure is a rule of administrative convenience, made necessary by the absence of cash with which to pay the tax prior to a sale and by difficulties in abstract valuation of farm products. * * * [Tatum v. Commissioner, 400 F.2d 242, 247 (5th Cir. 1968), affg. 46 T.C. 736 (1966).] Noting the regulation’s purpose, we must decide whether petitioners’ transfers of the replacement gilts and calves to their leased breeding herds represent reductions of these replacement animals to “money or the equivalent of money.” Under the present factual situations, there have obviously been no reductions to money. Our focus is, therefore, limited to a discussion of the" }, { "docid": "2057796", "title": "", "text": "the Internal Revenue Service. The cases relied upon by petitioner are all factually distinguishable. Campbell v. Prothro, 209 F. 2d 331 (C.A. 5, 1954), involved the donation to a charity of 100 head of calves to be selected by the donee’s agent from a larger herd. In White v. Brodrick, 104 F. Supp. 213 (D. Kan. 1952), the taxpayer donated to charity a specified number of bushels of wheat which he had raised and stored. In Stuart A. Rogers, 38 T.C. 785 (1962), the taxpayer contributed a $10,000 equity in a timber stand. In each case the subject of the gift was ultimately sold, and the Commissioner sought to include in the taxpayer’s gross income the sales proceeds paid to the charity. The courts held that the farm products were not income per se and that the use of those products by the taxpayer in making charitable gifts did not cause the recognition of taxable income. See also Elsie SoRelle, 22 T.C. 459, 476-479 (1954); Estate of W. G. Farrier, 15 T.C. 277, 283-284 (1950). In all these cases, gifts were made of the farm products as such-In none of these cases had steps been taken to market the farm products leaving the taxpayer with the right only to receive the proceeds from the sales. In the instant case, as discussed above, when petitioner made his church gifts, he had only a right to share in the sales proceeds. The factual situation, in substance, is no different than it would have been if he had received the payments from Calcot, deposited them in his bank account, and then transmitted the money to the church. Notwithstanding petitioner’s argument to the contrary, the foregoing conclusion does not conflict with the doctrine of constructive receipt or require his income to be reported in the year the cotton was harvested. See sec. 1.451-2(a), Income Tax Regs. Farmers have great flexibility in timing the receipt of taxable income from harvest ed crops. They may sell the crops immediately; they may hold them until the next taxable year; or they may sell them in one year" }, { "docid": "15656999", "title": "", "text": "amount of $167.48. In addition he claims auto expenses, depreciation, and taxes in the aggregate amount of $268.58. All of these amounts are now claimed to constitute “cost of goods sold” to be deducted from gross receipts in determining gross income. Respondent contends that these expense items were correctly reported in the original return as ordinary and necessary business expenses, which are properly deductible from gross income in determining adjusted gross income; and that the amount of gross income from the blacksmith and welding shop was the same as the amount of gross receipts, namely, $1,699.15, which under the community property laws of Texas would give each of petitioner’s parents a gross income for that year of $848.57. Section 22 (a) of the 1939 Code provides that “gross income” shall include the “gains, profits, and income derived from * * * compensation for personal service * * * of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property whether real or personal, growing out of the ownership or use of or interest in such prop erty.” Section 39.22 (a)-5 of Regulations 118 provides that “[i]n the case of a manufacturing, merchandising, or mining business, ‘gross income’ means the total sales, less the cost of goods sold.” Although petitioner takes the position that his father was in the business of manufacturing in that he made some small parts for farm machinery and equipment, it is clear on the facts of record that John Hahn was not engaged in the manufacturing business. The record as a whole makes it clear that what John Hahn was selling, for the most part at least, was not a material product to which direct costs could be allocated as in the case of a manufacturing business, but rather that he was selling services, consisting of his ability, know-how, and experience as a blacksmith and welder in the repair and maintenance of farm machinery and equipment. The use of the questioned items to which petitioner is attempting to attribute the qualities of costs of goods sold" } ]

[ { "docid": "18751230", "title": "", "text": "and labor required; (11) the amount involved and the results obtained; and (12) awards in similar cases. The Supreme Court has applied the Johnson factors, either directly or indirectly, and either in whole or in part, in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), and both Delaware Valley I and II. The trend since Hensley incorporated the Johnson factors by reference has been a whittling away of the Johnson factors as independent bases on which to justify an upward enhancement to a lodestar-determined fee. The Delaware Valley I Court described the decision in Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), as a “refinement” of its fee award standard. In Blum, the Court addressed the question of whether a 50 percent upward enhancement of a fee award was an abuse of discretion. On the ground that the fee applicant had not carried her burden of offering specific evidence justifying her entitlement to an upward adjustment, the Court reversed. Blum 465 U.S. at 902, 104 S.Ct. at 1550. The refinement identified by Delaware Valley I is Blum’s enunciated additional requirement before there could be an upward adjustment of a lodestar-determined fee award. Blum held that any upward modification to a lodestar-determined reasonable fee could only be countenanced in certain “rare” and “exceptional” cases. The Court framed its required additional findings thus: “An upward adjustment may be justified in the rare ease where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one should reasonably expect in light of the hourly rates charged and that the success was exceptional.” Delaware Valley I 478 U.S. at 566, 106 S.Ct. at 3099. The Blum Court postulated that “[w]hen ... the applicant for a fee has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee....” Blum 465 U.S. at 897, 104 S.Ct. at 1548. This presumption" } ]

[ { "docid": "18199710", "title": "", "text": "lodestar enhancements or multipliers in fee-shifting cases are almost completely unavailable, because many considerations that could lead to enhancement are contained within the lodestar itself. Penn. v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 566, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (“[T]he lodestar figure includes most, if not all, of the relevant factors constituting a ‘reasonable’ attorneys’ fee.”); see also, e.g., Blum v. Stenson, 465 U.S. 886, 898-99, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) (case’s “novelty and complexity” normally reflected in number of hours expended, and lawyers’ “experience and special skill” normally reflected in hourly rate). Outright prohibitions also exist. Id. at 901, n. 16, 104 S.Ct. 1541 (no enhancement for “great number of persons benefited.”); City of Burlington v. Dague, 505 U.S. 557, 567, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992) (no enhancement for contingency or risk of litigation); but see Blum, 465 U.S. at 901, 104 S.Ct. 1541 (enhancement may still be available in cases of “exceptional success”). The First Circuit is emphatic in rejecting multipliers to enhance the lodestar. See Lipsett v. Blanco, 975 F.2d 934, 942 (1st Cir.1992) (enhancement for quality of representation is a tiny exception that may not “eclipse the rule,” and only available “where a combination of sterling performance and exceptional results could conceivably justify a premium fee”); Adams v. Zimmerman, 73 F.3d 1164, 1178 (1st Cir.1996) (holding for second time post-Dague that contingency enhancement unavailable). In fact, since Dague, the First Circuit has never awarded a lodestar enhancement or multiplier. The unenhanced lodestar figure is strongly presumed to be the reasonable attorney fee that the losing defendant should pay in a fee-shifting case. Do these constraints on multipliers apply when I am not making an award against a losing defendant, but instead determining the reasonable fee that the lawyers should recover from the plaintiff class’s common fund settlement? I conclude that they do not. First, it is well established that a defendant may settle, for a single lump sum, all outstanding claims in a fee-shifting case, including claims for attorney fees. Evans v. Jeff D., 475 U.S." }, { "docid": "12642522", "title": "", "text": "happy about this result from a policy standpoint; indeed, particularly where private and unfunded counsel are expected to be enlisted to assist the private attorney general plaintiff, one can hardly overestimate the chilling effect of an interminable wait for payment in sharply shrunken dollars. The situation cries out for congressional remedy. One ingenious remedy sought by plaintiffs, in the event that we upheld the Eleventh Amendment defense to current hourly rates, is to remand to the district court “to determine if present hourly rates should be applied, based on factors other than delay in payment, or to determine whether an upward adjustment of the lodestar figure is necessary to fully and fairly compensate the plaintiffs.” (Appellees’ Brief at 24.) We do not feel this route is viable. The district court specifically recognized “that upward adjustments of a lodestar figure for quality of representation and results obtained ‘are to be few and far between.’ Wildman v. Lerner Stores Corp., 771 F.2d 605, 610 (1st Cir.1985); see also Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Garrity v. Sununu, 752 F.2d 727, 739 (1st Cir. 1984).” To these authorities we add Pennsylvania v. Delaware Valley Citizens’ Council, — U.S. -, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986), with its warning: In short, the lodestar figure includes most, if not all, of the relevant factors comprising a “reasonable” attorney’s fee, and it is unnecessary to enhance the fee for superior performance____ We add that although the Supreme Court heard reargument on whether fees “may be multiplied or otherwise enhanced to reflect the risk that plaintiffs might not have prevailed,” 106 S.Ct. 3331 (1986), we do not view, in light of the early and continuing success attained by plaintiffs in this case, such a risk here as to make this a “rare” or “exceptional” case. Blum v. Stenson, 465 U.S. 886, 898-901, 104 S.Ct. 1541, 1548-50, 79 L.Ed.2d 891 (1984); Hall v. Ochs, 817 F.2d 920 (1st Cir.1987). The result of this reasoning is that we must replace the current (1986) hourly rates established by plaintiffs’ credited expert" }, { "docid": "12553907", "title": "", "text": "Court must then proceed to calculate the amount of the attorney’s fee award. Such a calculation calls for a determination of a “reasonable” amount that would compensate the attorney. 42 U.S.C.A. § 1988(b) (1994). In determining the reasonableness of a request for attorney’s fees, the court must undertake the task of determining the lodestar amount: namely, the product of the number of hours reasonably expended in an action and the reasonable hourly rate. See Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 989, 944, 103 L.Ed.2d 67 (1989); see also Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 563, 106 S.Ct. 3088, 3097, 92 L.Ed.2d 439 (1986); Hensley, 461 U.S. at 433, 103 S.Ct. at 1939 (1983); Cruz v. Local Union No. 3 of Int’l Bhd., 34 F.3d 1148, 1159 (2d Cir.1994). Upon a showing by the applicant that both the claimed hourly rate and number of hours are reasonable, the lodestar amount is presumed to be the reasonable fee to which an attorney is entitled. Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984); New York State NOW v. Terry, 737 F.Supp. 1350, 1359 (S.D.N.Y. 1990). This lodestar amount must then be examined to determine the necessity of either downward or upward adjustments. However, in most circumstances, any relevant factors will bear on reasonableness and would thus be included in the calculation of the lodestar amount. In such a situation, no adjustment will be required. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. at 566, 106 S.Ct. at 3099. The court declines to make an upward adjustment as requested by the plaintiffs attorney in this case. Furthermore, the court possesses the freedom to “apply its own knowledge of prevailing rates and rates awarded in similar cases.” O’Connor v. Liberty Mut. Ins. Co., No. 92 Civ. 2296, 1995 WL 49278, at *4 (S.D.N.Y. Feb. 8, 1995). Upon a review of all of the above-listed factors with regard to this case, the court finds the plaintiff to be awarded $150.00 per hour for partner’s efforts, as well as a" }, { "docid": "22917289", "title": "", "text": "amount. See In re Apex Oil, 960 F.2d at 731-32. Nevertheless, adjustments to the lodestar amount may be made in rare and exceptional circumstances based on the quality of the representation or the results obtained. Id. at 732 (citing Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) (Delaware Valley I)). Such a finding by the bankruptcy court must be supported by both specific evidence on the record and detailed findings by the bankruptcy court. Id. As the'Eighth dircuit elaborated: Because the lodestar amount may already compensate the applicant for exceptionally good service and results, however, the fee applicant must do more than establish outstanding service and results. The applicant also must establish that the quality of service rendered and the results obtained were superior to what one reasonably should expect in light of the hourly rates charged and the number of hours expended. See [Blum v. Stenson, 465 U.S. 886, 899, 104 S.Ct. 1541, 1549, 79 L.Ed.2d 891 (1984) ]; Copeland v. Marshall, 641 F.2d 880, 893-94 (D.C.Cir.1980) (“A quality adjustment is appropriate only when the representation is unusually good or bad, taking into account the level of skill normally expected of an attorney commanding the hourly rate used to compute the ‘lodestar.’ ”) (emphasis in original). Id. Beyond this, it is not clear as to what types of factors the bankruptcy court can consider in determining whether an adjustment to the lodestar amount is appropriate. The Eighth Circuit in fact stated in In re Apex Oil that it was not attempting to give a comprehensive answer to the question as to what an applicant must show to establish that rare and exceptional circumstances exist to justify a fee enhancement; rather, it merely answered the question as to whether and when the quality of representation or the results obtained can constitute\" a basis for fee enhancement. Id. Many courts, including the bankruptcy court in this case, have applied the standards set forth in Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 717-19 (5th Cir.1974), to determine" }, { "docid": "4748967", "title": "", "text": "(Bankr.N.D.Ill.1989) (trustee’s attorneys were entitled to fee enhancement of 2.0 or double the lodestar for time spent in negotiating settlement of class action brought by special counsel); In re Energy Cooperative, Inc., 95 B.R. 961 (Bankr.N.D.Ill.1988) (enhancement for delay in payment is appropriate and should take the form of an award of interest). Fee enhancements are only justified in cases of exceptional success. Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). According to the Supreme Court in Blum, the burden of proving that such enhancement is proper is on the Applicant. In that case, the Supreme Court reversed the award of a fifty percent bonus made by the district court, finding that neither complexity nor novelty of the issues was an appropriate basis on which to enhance. Pursuant to Blum, those factors are adequately reflected in the lodestar rates. In addition, such matters as quality of work and benefits to a number of persons were not weighty considerations. Where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably expects in light of the hourly rates charged, and that the results were exceptional, fee enhancement could be properly allowed. Id. at 899, 104 S.Ct. at 1549. Such evidence and findings that may merit enhancement include the facts showing in the absence of likelihood of enhancement for risks the plaintiff would have faced, substantial difficulties existed in finding counsel in the relevant professional market. In light of Blum, a showing of good results obtained is not solely the basis for fee enhancement. Attorney fee enhancement was subsequently addressed in Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air (I), 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (“Delaware Valley I”) and Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air (II), 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (“Delaware Valley II”). Delaware Valley I left undecided the issue of whether enhancement was proper based on the attorney’s risk of loss. The Delaware Valley II, court noted that adjustment to the lodestar" }, { "docid": "17093144", "title": "", "text": "“lodestar” or the number of hours reasonably expended on the litigation times a reasonable hourly rate. Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986); Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Acknowledging the presumption of reasonableness that attaches to the lodestar, the district court then proceeded to consider whether an adjustment of the lodestar was nonetheless warranted to arrive at a reasonable fee. See Blum, 465 U.S. at 897, 104 S.Ct. 1541. In so doing, the district court was careful to state its findings in reducing the number of hours claimed, Farbotko Fee Award II, slip. op. at 5-8, as well as to provide a not unreasonable explanation for reducing the award by 40% due to what it considered the “limited success” of the appeal, id. at 11-12. Notably, however, the opinion of the district court did not reflect any findings of fact or other comment on the evidence proffered in support of plaintiffs-appellants’ request for hourly rates of $200 and $250 for work performed before the district court and this Court, respectively. Instead, the district court appears to have relied solely on the rate structures applied in other Northern District eases, and, consistent with those cases, set the hourly rate at $175. Id. at 9. But a reasonable hourly rate is not itself a matter of binding precedent. Rather, under established caselaw, a reasonable hourly rate is the “prevailing market rate,” i.e., the rate “prevailing in the [relevant] community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum, 465 U.S. at 896 & n. 11, 104 S.Ct. 1541; see also Cohen v. W. Haven Bd. of Police Comm’rs, 638 F.2d 496, 506 (2d Cir.1980) (“[F]ees that would be charged for similar work by attorneys of like skill in the area” are the “starting point for determination of a reasonable award.”). The relevant community, in turn, is the district in which the court sits. Polk v. N.Y. State Dep’t of Corr. Servs., 722 F.2d 23, 25 (2d" }, { "docid": "17093143", "title": "", "text": "us to determine that the applicable hourly rate is $250 as to all work performed and award fees accordingly, or, in the alternative, remand to the district court for reconsideration of the hourly rate or rates to be applied and a recalculation of the fee award. II. DISCUSSION A. Standard of Review Attorney’s fees are authorized by 42 U.S.C. § 1988(b) for parties prevailing on claims under 42 U.S.C. § 1983 in order “to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel.” Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982). We review the district court’s award of attorney’s fees for abuse of discretion, LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 757 (2d Cir.1998), and “[a] district court necessarily abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the record,” id. B. Determination of a Reasonable Hourly Rate The district court began its inquiry by calculating a “lodestar” or the number of hours reasonably expended on the litigation times a reasonable hourly rate. Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986); Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Acknowledging the presumption of reasonableness that attaches to the lodestar, the district court then proceeded to consider whether an adjustment of the lodestar was nonetheless warranted to arrive at a reasonable fee. See Blum, 465 U.S. at 897, 104 S.Ct. 1541. In so doing, the district court was careful to state its findings in reducing the number of hours claimed, Farbotko Fee Award II, slip. op. at 5-8, as well as to provide a not unreasonable explanation for reducing the award by 40% due to what it considered the “limited success” of the appeal, id. at 11-12. Notably, however, the opinion of the district court did not reflect any findings of fact or other comment on the evidence proffered in support of plaintiffs-appellants’ request for" }, { "docid": "16126603", "title": "", "text": "of representation, and (4) the results obtained, these factors normally cannot serve as independent bases for increasing the fee award above the lodestar amount. See, e.g., Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565,106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) (Delaware I); Blum v. Stenson, 465 U.S. 886, 898-900, 104 S.Ct. 1541, 1548-1550, 79 L.Ed.2d 891 (1984). The Supreme Court, however, has stated that upward adjustments of the lodestar figure are permissible “in certain ‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the record and detailed findings by the lower courts.” Delaware I, 478 U.S. at 565, 106 S.Ct. at 3098. We find that the lodestar approach, including the possibility of adjustments in rare and exceptional circumstances, is an appropriate method to use in calculating reasonable compensation under § 330. See In re Manoa Fin. Co., 853 F.2d at 691. The more difficult question is what the fee applicant must show to establish that rare and exceptional circumstances exist. We do not attempt a comprehensive answer to this question. Rather, our focus in this case is on whether and when the quality of representation or the results obtained can constitute a basis for fee enhancement. We conclude that these factors can justify a fee enhancement. Because the lodestar amount may already compensate the applicant for exceptionally good service and results, however, the fee applicant must do more than establish outstanding service and results. The applicant also must establish that the quality of service rendered and the results obtained were superior to what one reasonably should expect in light of the hourly rates charged and the number of hours expended. See Blum, 465 U.S. at 899, 104 S.Ct. at 1549; see also Copeland v. Marshall, 641 F.2d 880, 893-94 (D.C.Cir.1980) (“A quality adjustment is appropriate only when the representation is unusually good or bad, taking into account the level of skill normally expected of an attorney commanding the hourly rate used to compute the ‘lodestar.’ ” (emphasis in original));' In re Energy Co-op, 95 B.R. 961, 965 (Bankr.N.D.Ill.1988) (denying enhancement because high quality" }, { "docid": "18937093", "title": "", "text": "rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). In City of Burlington v. Dague, 505 U.S. 557, 567,112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), the Supreme Court held that “enhancement for contingency is not permitted under [federal] fee-shifting statutes.” Thus, Forshee’s motion to the district court requested a fee enhancement for an impermissible reason. An upward adjustment to an attorney’s lodestar hourly rate is permissible “in certain 'rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the record and detailed findings by the lower courts.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). “Because the lodestar amount may already compensate the applicant for exceptionally good service and results, however, the fee applicant must do more than establish outstanding service and results. The applicant also must establish that the quality of service rendered and the results obtained were superior to what one reasonably should expect in light of the hourly rates charged and the number of hours expended.” In re Apex Oil Co., 960 F.2d 728, 732 (8th Cir.1992). Here, the case was not unusually difficult or complex to prepare- and try, the result while favorable to Forshee was not exceptional, Forshee gave only an impermissible reason for enhancement, and the district court made no “detailed findings” that would justify an enhanced fee award. In these circumstances, we conclude that an award to attorney Grider based upon an hourly rate above his normal hourly rate of $100 per hour was an abuse of discretion. See Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051, 1062 (8th Cir.1993). Finally, we reject Waterloo’s contention that the district court abused its discretion in awarding a fee based upon the hours attorney M. Joseph Grider spent in assisting attorney Murrey Grider prepare for and attend the trial. The court reasonably reduced the hours claimed by Joseph Gri-der to eliminate any duplicative effort. The judgment of the district court dated January 21, 1998, is modified to eliminate the award of $9,631.00 compensatory damages." }, { "docid": "23304029", "title": "", "text": "the fee awarded be reasonable,” that is, one that is adequately compensatory to attract competent counsel yet which avoids producing a windfall for lawyers. Reed, 179 F.3d at 471 (citing Blum v. Stenson, 465 U.S. 886, 893, 897, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). The trial court’s initial point of departure, when calculating a “reasonable” attorney fee, should be the determination of the fee applicant’s “lodestar,” which is the proven number of hours reasonably expended on the case by an attorney, multiplied by his court-ascertained reasonable hourly rate. Hensley, 461 U.S. at 433, 103 S.Ct. 1933; Reed, 179 F.3d at 471. The trial judge may then, within limits, adjust the “lodestar” to reflect relevant considerations peculiar to the subject litigation. Reed, 179 F.3d at 471-72. The factors which the district court may consider, either in determining the basic lodestar fee and/or adjustments thereto, include the twelve listed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974). Hensley, 461 U.S. at 434 n. 9, 103 S.Ct. 1933. A highly important Johnson factor is the result achieved. Id. at 435-36, 103 S.Ct. 1933. “Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee.” Id. at 435, 103 S.Ct. 1933. Generally, a “strong presumption” favors the prevailing lawyer’s entitlement to his lodestar fee. See City of Burlington v. Dague, 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (citing Blum, 465 U.S. at 897, 104 S.Ct. 1541). Accordingly, “modifications [to the lodestar] are proper only in certain ‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the record and detailed findings by the lower courts.” Delaware Valley Citizens’ Council, 478 U.S. at 565, 106 S.Ct. 3088 (citing Blum, 465 U.S. at 898-901, 104 S.Ct. 1541). See also Van Gerwen v. Guarantee Mutual Life Co., 214 F.3d 1041, 1045 (9th Cir.2000). A trial court, in calculating the “reasonable hourly rate” component of the lodestar computation, should initially assess the “prevailing market" }, { "docid": "18937092", "title": "", "text": "90 F.3d 927, 939-40 (5th Cir.1996), cert. denied, 519 U.S. 1091, 117 S.Ct. 767, 136 L.Ed.2d 713 (1997). III. The Award of Attorneys’ Fees Conceding that Forshee as prevailing party is entitled to an attorneys’ fee •award, see 42 U.S.C. § 2000e-5(k), Waterloo argues the district court abused its discretion by awarding Forshee’s lead attorney an enhanced fee based upon an hourly rate above his normal hourly rate. We agree. Forshee’s motion for an attorneys’ fees award represented that attorney Murrey Grider’s normal hourly rate was $100 per hour and requested that this rate be enhanced to $150 per hour because Grider represented Forshee “on a contingency basis.” Without explanation, the district court based its award on an hourly rate of $125 for attorney Grider. “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1988). Reasonable hourly rates are “the prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). In City of Burlington v. Dague, 505 U.S. 557, 567,112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), the Supreme Court held that “enhancement for contingency is not permitted under [federal] fee-shifting statutes.” Thus, Forshee’s motion to the district court requested a fee enhancement for an impermissible reason. An upward adjustment to an attorney’s lodestar hourly rate is permissible “in certain 'rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the record and detailed findings by the lower courts.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). “Because the lodestar amount may already compensate the applicant for exceptionally good service and results, however, the fee applicant must do more than establish outstanding service and results. The applicant also must establish that the quality of service rendered and the results obtained were superior to what one reasonably should expect in light of the hourly rates charged" }, { "docid": "7459798", "title": "", "text": "expended. See Hensley, 461 U.S. at 437, 103 S.Ct. at 1941; Leroy, 831 F.2d at 586. In step two the court selects “an appropriate hourly rate based on prevailing community standards for attorneys of similar experience in similar cases.” Sims v. Jefferson Downs Racing Ass’n, 778 F.2d 1068, 1084 (5th Cir.1985). The number of compensable hours is then multiplied by the selected hourly rate to produce the “lodestar.” Id. Finally, the district court may, in appropriate cases, adjust the lodestar up or down in accordance with relevant Johnson factors not already included in the lodestar. “[T]he ‘novelty [and] complexity of the issues,’ ‘the special skill and experience of counsel,’ the ‘quality of representation,’ and the ‘results obtained’ from the litigation are presumably fully reflected in the lodestar amount, and thus cannot serve as independent bases for increasing the basic fee award.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) (Delaware Valley I); see also Blum v. Stenson, 465 U.S. 886, 898-900, 104 S.Ct. 1541, 1548-50, 79 L.Ed.2d 891 (1984). In adjusting the lodestar the court must be wary of the fact that the lodestar “is presumed to be the reasonable fee,” Delaware Valley I, 478 U.S. at 564, 106 S.Ct. at 3098; Blum, 465 U.S. at 897, 104 S.Ct. at 1548, and that upward adjustments of the lodestar are appropriate only “in certain ‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the record and detailed findings by the lower courts,” Delaware Valley I, 478 U.S. at 565, 106 S.Ct. at 3098. We review findings of fact supporting an award of attorneys’ fees under the clearly erroneous standard, but review the award itself for abuse of discretion. Leroy, 831 F.2d at 584. Defendants challenge: (1) the district court’s acceptance in toto of Oitzinger’s claim for 6,652 hours; (2) the court’s failure to distinguish between Oitzinger’s role as plaintiff’s attorney and his role as the court’s ombudsman, and hence the failure to apply a lower rate to the ombudsman hours; (3) the court’s upward adjustment of the" }, { "docid": "4615646", "title": "", "text": "434, n. 9, 103 S.Ct. at 1939, n. 9. Then came Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), which held that factors such as complexity of the case, skill of counsel, and results obtained were all built into the hourly rate used to calculate the lodestar amount, and that a premium above that amount should be awarded only where the Court makes a detailed finding based upon specific evidence establishing rare or exceptional circumstances. Finally, in Pennsylvania v. Delaware Valley Citizens Council, — U.S. -, -, 106 S.Ct. 3088, 3097, 92 L.Ed.2d 439, 456 (1986), an environmental case, the court found a “strong presumption that the lodestar figure ... represents a ‘reasonable’ fee,” and concluded that: ... [t]he lodestar figure includes most, if not all, of the relevant factors comprising a “reasonable” attorney’s fee, and it is unnecessary to enhance the fee for superior performance ... — U.S. at-, 106 S.Ct. at 3098, 92 L.Ed.2d at 457 The Court specifically reserved the question for later argument whether the lodestar might be enhanced “based on the likelihood of success, or to put it another way, the risk of loss.” — U.S.-, 106 S.Ct. 3099, 92 L.Ed.2d 458. While this line of cases involved other areas of the law, the principles they establish have been embraced by both bankruptcy courts and other courts passing on fees in bankruptcy cases. See, e.g., In re Consolidated Bancshares, Inc., 785 F.2d 1249, 1257 (5th Cir.1986); In re Seneca Oil Co., 65 B.R. 902, 912 (Bankr.W.D.Okla.1986); In re B. & W. Management, Inc., 63 B.R. 395, 412 (Bankr.D.D.C.1986). Given the substantial (and ever increasing) hourly rates by specialists in the bankruptcy field, as well as the general applicability of the Supreme Court’s pronouncements, we are persuaded that these principles should apply in this Court as well. Turning to the application in question, we find that the “reasonable hourly rate” for calculating the lodestar consists of the customary rate charged by Bavely and Grossheim during the years in question. Thus, the lodestar for Bavely’s time is $3,795.25 (44.65 hours X $85)" }, { "docid": "12345177", "title": "", "text": "(D.C.Cir.1980) (en banc), begins by setting the lodestar figure, which is \"the number of hours reasonably expended multiplied by a reasonable hourly rate.” Id. at 891. This figure “‘ispresumed to be the reasonable fee' to which counsel is entitled.\" Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) (hereinafter “Delaware Valley I\") (citing Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984)). In rare and exceptional cases, adjustment to the lodestar figure is permissible to incorporate factors not reflected in the lodestar. See id.; Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 13 (D.C.Cir.1984). . Counsel for the plaintiff class submitted four pleadings in support of their application for attorneys’ fees. We refer here to the fourth pleading, which revised the fee-petition in light of this court's holding in Laffey. . 29 U.S.C. § 216(b) provides, in relevant part, \"[t]he court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.\" . Delaware Valley II was decided over a year after this case was argued on appeal, and eight years after it was heard in the district court. . Initially, in Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983), the Supreme Court indicated that \"in some cases of exceptional success an enhanced award may be justified.\" Subsequently, in Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), the Court reformulated the above passage from Hensley, subsuming \"results obtained\" under the rubric of \"quality of representation.” The Court indicated “[t]he ‘quality of representation,’ ... may justify an upward adjustment only in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior ... and that the success was ‘exceptional’.” Id. at 899, 104 S.Ct. at 1549. In a neighboring paragraph, the Court also referred to \"results obtained” as a separate factor relevant to" }, { "docid": "22439282", "title": "", "text": "connection with the fees of the three other PMC members. The decision to allow a quality multiplier rests in the sound discretion of the district court, Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983); Grinnell II, 560 F.2d at 1098, due to “the district court’s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.” Hensley, 461 U.S. at 437, 103 S.Ct. at 1941. The Supreme Court, however, in Blum v. Stenson, 465 U.S. 886, 899, 104 S.Ct. 1541, 1549, 79 L.Ed.2d 891 (1984), and more recently in Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, — U.S. -, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986), has severely restricted those instances in which a district court may allow such a multiplier. In Blum, a decision concerning application of the lodestar analysis to a fee award under 42 U.S.C. § 1988, the Court determined that factors such as quality of representation are presumed to be fully reflected in the initial lodestar figure, derived by multiplying the number of hours reasonably billed by the court-established hourly rate. Blum, 465 U.S. at 899, 104 S.Ct. at 1549. Accordingly, the Court concluded that an adjustment to the lodestar figure for such a factor would only be proper in “the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was ‘exceptional.’ ” Id. (emphasis added). In Delaware Valley Citizens’ Council, a decision concerning application of the lodestar analysis to a fee award under section 304(d) of the Clean Air Act, 42 U.S.C.A. § 7604(d) (West 1983), the Court reaffirmed the narrow approach taken in Blum, declaring that calculating fee awards under the lodestar analysis “leaves very little room for enhancing the award based on [counsel’s] post-engagement performance.” Delaware Valley Citizens’ Council, 106 S.Ct. at 3098. Given these pronouncements, the issue, in our view, is not whether the quality multipliers awarded by" }, { "docid": "16126602", "title": "", "text": "the necessary factual determination. Id. Our review focuses on whether the bankruptcy court applied the correct legal standard for fee enhancement. Compensation of certain professionals in bankruptcy matters, including examiners, is governed by 11 U.S.C. § 330(a) which allows the court to award: (1) reasonable compensation for actual, necessary services ... based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title.'... 11 U.S.C. § 330(a) (1988), In determining what constitutes “reasonable compensation” under this section, most courts have adopted the formula used to calculate fees under various federal fee-shifting statutes. In re Manoa Fin. Co., 853 F.2d 687, 690 (9th Cir.1988). Compensation under these statutes is based on the lodestar amount which, as noted above, is the number of hours reasonably expended multiplied by a reasonable hourly rate. Because this lodestar amount presumably reflects (1) the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of representation, and (4) the results obtained, these factors normally cannot serve as independent bases for increasing the fee award above the lodestar amount. See, e.g., Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565,106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) (Delaware I); Blum v. Stenson, 465 U.S. 886, 898-900, 104 S.Ct. 1541, 1548-1550, 79 L.Ed.2d 891 (1984). The Supreme Court, however, has stated that upward adjustments of the lodestar figure are permissible “in certain ‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the record and detailed findings by the lower courts.” Delaware I, 478 U.S. at 565, 106 S.Ct. at 3098. We find that the lodestar approach, including the possibility of adjustments in rare and exceptional circumstances, is an appropriate method to use in calculating reasonable compensation under § 330. See In re Manoa Fin. Co., 853 F.2d at 691. The more difficult question is what the fee applicant must show to establish that rare and exceptional circumstances exist. We do not attempt a comprehensive answer to" }, { "docid": "20569625", "title": "", "text": "“Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee ..., and indeed in some cases of exceptional success an enhanced award may be justified.” Hensley, 461 U.S. at 435, 103 S.Ct. 1933. The Court recognizes that most of the factors relevant to calculating a reasonable fee award are already reflected in the lodestar amount and “thus cannot serve as independent bases for increasing the basic fee award.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). Nevertheless, upward adjustments of the lodestar figure are still permissible “in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was ‘exceptional.’ ” Blum, 465 U.S. at 899, 104 S.Ct. 1541 (quoting Hensley, 461 U.S. at 435, 103 S.Ct. 1933); see also Norman, 836 F.2d at 1302. The Court finds that plaintiffs have submitted such specific evidence in this case. First, the evidence establishes that the quality of service rendered by class counsel, including their extraordinary commitment of capital resources, was far superior to what consumers of legal services in the legal marketplace in Atlanta could reasonably expect to receive for the rates used in the lodestar calculation. Specifically, the evidence shows that the hourly rates used in the lodestar calculation do not take into account (1) the fact that class counsel were required to advance case expenses of $1.7 million over a three-year period with no ongoing reimbursement, (2) the fact that class counsel were not paid on an on-going basis as the work was being performed, and (3) the fact that class counsel’s ability to recover a fee and expense reimbursement were completely contingent on the outcome of the case. (Chandler Decl. ¶¶ 5-8; Fellows Decl. ¶¶ 5-8; Knowles Deck ¶¶ 7-12; Rawls Deck ¶¶ 5-8; Lowry Deck ¶ 25; Bramlett Deck ¶¶ 7(a) & (g), 10, 13-14.) In addition, based on its personal observation of plaintiffs’" }, { "docid": "22917288", "title": "", "text": "1933, 1939, 76 L.Ed.2d 40 (1983) (holding that the starting point in determining the amount of reasonable fees under civil rights statutes was a lodestar calculation which provides an objective basis on which to make an initial estimate of the value of a lawyer’s services). If the hours or the rate requested by the professional is not reasonable under the circumstances for the work performed, the bankruptcy court should make such a finding. Once the lodestar amount has been calculated, that amount is presumed to be reasonable compensation under § 330. See In re Manoa Fin. Co., 853 F.2d 687, 691 (9th Cir.1988). However, using the lodestar amount as a start, the Eighth Circuit has held that adjustments may be made to that amount under certain circumstances. Because the lodestar amount presumably reflects (1) the novelty and complexity of the issues, (2) the special skill and experience of counsel; (3) the quality of representation, and (4) the results obtained, these factors normally cannot serve as independent bases for increasing the fee award above the lodestar amount. See In re Apex Oil, 960 F.2d at 731-32. Nevertheless, adjustments to the lodestar amount may be made in rare and exceptional circumstances based on the quality of the representation or the results obtained. Id. at 732 (citing Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) (Delaware Valley I)). Such a finding by the bankruptcy court must be supported by both specific evidence on the record and detailed findings by the bankruptcy court. Id. As the'Eighth dircuit elaborated: Because the lodestar amount may already compensate the applicant for exceptionally good service and results, however, the fee applicant must do more than establish outstanding service and results. The applicant also must establish that the quality of service rendered and the results obtained were superior to what one reasonably should expect in light of the hourly rates charged and the number of hours expended. See [Blum v. Stenson, 465 U.S. 886, 899, 104 S.Ct. 1541, 1549, 79 L.Ed.2d 891 (1984) ]; Copeland v." }, { "docid": "4344989", "title": "", "text": "(Bankr.S.D.N.Y.1997)). “Section 330 of the Bankruptcy Code incorporates the lodestar analysis by requiring that the bankruptcy court consider the time spent upon legal services and the rate charged for those services.” D.A. Elia Constr. Corp. v. Damon and Morey, LLP, 2006 WL 1720361 *5 (W.D.N.Y. Jun.19, 2006). “The customary way to determine a reasonable fee is to begin with the ‘lodestar’ test, and then decide whether to apply any appropriate enhancements under Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-720 (5th Cir.1974).” In re Erik Stephen Brous, 370 B.R. 563, 569 (Bankr.S.D.N.Y.2007) (citing Connolly v. Harris Trust Co. of Cal. (In re MiniScribe), 309 F.3d 1234, 1243 (10th Cir.2002)). See 11 U.S.C. § 330(a)(3). Section 330 also requires the court to take into account other factors, such as the benefit of the services to the bankruptcy estate. See 11 U.S.C. § 330(a)(3). The “lodestar” approach involves multiplying the reasonable billing rate by the reasonable number of hours expended. See Blum v. Stenson, 465 U.S. 886, 898-901, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The “lodestar figure includes most, if not all, of the relevant factors constituting a ‘reasonable’ ... fee ...” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 566, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). Thus, the “lodestar” already reflects the novelty and complexity of the matter, the quality of the representation and the results achieved. See Blum at 899, 104 S.Ct. 1541 (an upward adjustment may be justified “only in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was exceptional).” “Enhancements to the ‘lodestar’ amount are proper only in rare and exceptional cases supported by specific evidence and detailed findings.” Brous, id. (citations omitted). FTI asserts it contributed to the successful restructuring of Debtors where unsecured creditors received a substantial recovery. FTI Fifth and Final Application at ¶ 14. FTI lists eight areas where it contributed to the “success” of Debtors’ reorganization:" }, { "docid": "6208776", "title": "", "text": "Id. at 12. The Portland attorney in Nemo has considerable more litigation experience than Plaintiffs counsel, Mr. Crispin, and was awarded by the Court a lower fee than Mr. Crispin requests. Moreover, Plaintiff failed to provide rates of Portland lawyers of comparable skill, experience, and reputation with Mr. Crispin. Instead, she included an affidavit from Stephen Brischetto who charges $200/hour for representing plaintiffs in em-fe ployment law cases, but who has litigated'\"' many significant employment law cases to judgment. In contrast, Mr. Crispin’s affidavit is devoid of any employment law case that he has litigated to judgment. Therefore, Plaintiff failed to include evidence of reasonable rates in the community of similarly experienced employment law attorneys. Mr. Osaka notes that he is more experienced than Mr. Crispin and charges only $145/hour. I find that this is a “reasonable rate” based on the average rates for civil litigation attorneys in Portland, especially considering Mr. Crispin’s moderate litigation experience in the field. Accordingly, Mr. Crispin’s rate is $145/hour and Ms. Jacob’s is $115/hour. The rates of the other individuals who worked on Plaintiffs case are reasonable. c. Lodestar Fee Multiplying the hours that were reasonably expended by the reasonable rates, 1 conclude that the lodestar fee is $43,505.07. This sum includes all hours reasonably expended which includes all current and future fees incurred in preparing and litigating Plaintiffs Petition for Attorney Fees and Costs. There will be no supplemental award of attorney fees in this ease. Therefore, the total lodestar fee is $43,505.07. Plaintiff requests that the lodestar amount be adjusted upward. However, the lodestar fee is presumed reasonable and will be upwardly adjusted only “in certain ‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the record and detailed findings by the lower courts.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) (quoting Blum v. Stenson, 465 U.S. 886, 898-901, 104 S.Ct. 1541, 1548-50, 79 L.Ed.2d 891 (1984), rev’d after rehearing on other grounds, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987)); see also Cunningham, 879" } ]

[ { "docid": "1155007", "title": "", "text": "Brown, 568 S.W.2d 100 (Tenn.1978); WILLISTON ON CONTRACTS § 1550, p. 160 (3rd ed.) (“where a deed conveys a smaller estate or gives a smaller right than was intended, or inadequately describes an estate or right, the grantee is allowed a reformation of the instrument so that it shall express the real intention”). However, this rule does not apply where third parties have acquired an interest in real property omitted from a deed without notice of the original grantee’s adverse claim. See Stoneham Five Cents Savings Bank v. Johnson, 295 Mass. 390, 3 N.E.2d 730, 732 (1936) (“in case of mutual mistake, relief is afforded against those who claim under the grantor except against those who by reason of being bona fide holders for value without notice have an equity superior to the grantee”). Such a third party is the trustee in bankruptcy who under 11 U.S.C. § 544(a) has the rights of a bona fide purchaser for value without notice. Here, the trustee’s rights have intervened and reformation of the deed between the debtors and Citizens Bank cannot be granted. Judge Bare reached the same conclusion in Mountain Empire Bank v. Lancaster (In re Hunt), 18 B.R. 504 (Bankr.E.D.Tenn.1982). Acknowledging that title to the Marshall tract remains in the debtor and became property of the bankruptcy estate does not mean that Citizens Bank is without remedy. The bank argues that the Assumption Agreement is unenforceable due to a material failure of consideration: since it did not receive title to the Marshall tract, the obligation to pay the First Federal mortgage is not enforceable. On these facts, the promisee (the debtors) has failed to perform its promise to Citizen’s Bank — the conveyance of the real estate (Brooks and Marshall tracts) securing the loan to First Federal. Because the debtors failed to deliver the consideration for the assumption, they could not enforce that agreement under Tennessee law. Farrell v. Third National Bank in Nashville, 20 Tenn.App. 540, 101 S.W.2d 158 (1936) cert. denied, (1937); City of Shelbyville v. State ex rel. Bedford County, 220 Tenn. 197, 415 S.W.2d 139 (1967);" } ]

[ { "docid": "21523032", "title": "", "text": "37 F.3d 760, 763 (1st Cir.1994)). DISCUSSION Section 544(a)(3) vests the trustee with the powers of a bona fide purchaser of real property for value, and allows the trustee to invalidate unperfected security interests. See 11 U.S.C. § 544(a)(3); In re Garrido Jimenez, 370 B.R. 878, 881 (1st Cir. BAP 2007) (an unrecorded deed was ineffective against the trustee in his strong arm capacity as a hypothetical bona fide purchaser); Wegner v. Letcher (In re Wegner), 210 B.R. 799, 801 (Bankr.D.N.D.1997) (mortgagee failed to record the mortgage, so the trustee had the rights of a bonafíde purchaser of real property for value, resulting in the trustee invalidating the security interest), aff'd, 162 F.3d 1166 (8th Cir.1998). “[N]o other purpose would have been consistent with the principal function of the ‘strong arm’ clause-to invalidate unperfected security transfers.” Rodolakis v. Pedone (In re Belba), 226 B.R. 738, 744 (Bankr.D.Mass.1998). In the present case, the mortgage in question was unrecorded as of the date of the petition, and under § 551 of the Bankruptcy Code, “[a]ny transfer avoided ... under section 544 ... is preserved for the benefit of the estate.” 11 U.S.C. § 551; see also In re Guido, 344 B.R. 193, 197 (Bankr.D.Mass.2006) (“The Bankruptcy Code provides for the automatic preservation of avoided transfers for the benefit of the estate’’); Carvell v. Lafayette (In re Carvell), 222 B.R. 178, 180 (1st Cir. BAP 1998) (preservation for the benefit of the estate puts the estate in the shoes of the creditor whose lien was avoided, the trustee assumes the position that the lien holder previously held, and the mortgage is treated as if it had not been avoided, as between the debt- or and the trustee). Similarly, in this case, after avoiding American’s unrecorded mortgage, the Trustee assumed the creditor’s prior secured position and the Debtor has no more protection against the Trustee in bankruptcy than the Debtor would have had from the mortgagee under non-bankruptcy law. See In re Guido, 344 B.R. at 198. Further, and importantly in this appeal, under § 101(37) of the Code, a lien is “a charge" }, { "docid": "1155863", "title": "", "text": "In re Dlott, 43 B.R. 789, 792-93 (Bktcy.D.Mass.1983); In re Duffy-Irvine Associates, 39 B.R. 525, 528-29 (Bktcy.E.D. Pa.1984); I.S.D. I, 38 B.R. at 452-53. The existing authorities indicate, though, that Congress did not intend to eliminate all protections accorded under state law to holders of equitable interests. Thus, it has consistently been held that, where state law so provides, a Trustee charged with constructive notice of such prior interests may not rely on his bona fide purchaser status to avoid those interests. See e.g., Matter of Rieber, 740 F.2d at 12; McCannon v. Marston, 679 F.2d at 16-17; In re Taylor, 43 B.R. at 528 n. 3; In re Dlott, 43 B.R. at 793, I.S.D. I, 38 B.R. at 453. Minnesota law, concerning the void-ability of unrecorded conveyances of real property, is governed by Minn.Stat. § 507.-34, the state recording statute. That section provides; Every conveyance of real estate shall be recorded in the office of the county recorder of the county where such real estate is situated; and every such conveyance not so recorded shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate ... whose conveyance is first duly recorded.... Minn.Stat. § 507.34 (1984). A “subsequent purchaser in good faith and for a valuable consideration” has been interpreted to constitute a bona fide purchaser who gives consideration in good faith without actual or constructive notice of inconsistent outstanding rights of others. Anderson v. Graham Investment Co., 263 N.W.2d 382, 384 (Minn.1978). By the plain reading of the statute and interpretive case law, therefore, it is clear that the law in this state does not protect a purchaser who has either actual or constructive notice of inconsistent rights in another. Section 544(a)(3) of the Bankruptcy Code, as it relates to Bankruptcy Trustees, limits the protection accorded holders of equity interests under state law by nullifying the effect of the trustee’s personal knowledge. In this state, however, the trustee remains bound by whatever relevant constructive notice exists. I.S.D. I, 38 BR. at 453. The primary issue in this matter," }, { "docid": "1155862", "title": "", "text": "based its decision on the determination that the Trustee had constructive notice of the opposing party’s prior claim. In the present matter, the Defendants request that I adopt the rationale and holding of the court in I.S.D. I. It is undisputed that section 544(a)(3) confers upon the Trustee, as of the date the bankruptcy petition is filed, all of the rights and powers that a bona fide purchaser would have under state law, including the right and power to avoid a prior, unrecorded conveyance which is avoidable by an actual bona fide purchaser from the debtor. Whether such a bona fide purchaser actually exists, however, is irrelevant. Moreover, this status is conferred upon the Trustee under section 544(a)(3) regardless of his own personal knowledge of any relevant facts. Matter of Rieber, 740 F.2d 10, 12 (8th Cir.1984); McCannon v. Marston, 679 F.2d 13, 16-17 (3rd Cir. 1983); In re Harter, Inc., 31 B.R. 1015, 1020 (D.Kan.1983); In re Morse, 30 B.R. 52, 54-55 (Bktcy.App. 1st Cir.1983); In re Taylor, 43 B.R. 524, 528 (Bktcy.N.D.Ala. 1984); In re Dlott, 43 B.R. 789, 792-93 (Bktcy.D.Mass.1983); In re Duffy-Irvine Associates, 39 B.R. 525, 528-29 (Bktcy.E.D. Pa.1984); I.S.D. I, 38 B.R. at 452-53. The existing authorities indicate, though, that Congress did not intend to eliminate all protections accorded under state law to holders of equitable interests. Thus, it has consistently been held that, where state law so provides, a Trustee charged with constructive notice of such prior interests may not rely on his bona fide purchaser status to avoid those interests. See e.g., Matter of Rieber, 740 F.2d at 12; McCannon v. Marston, 679 F.2d at 16-17; In re Taylor, 43 B.R. at 528 n. 3; In re Dlott, 43 B.R. at 793, I.S.D. I, 38 B.R. at 453. Minnesota law, concerning the void-ability of unrecorded conveyances of real property, is governed by Minn.Stat. § 507.-34, the state recording statute. That section provides; Every conveyance of real estate shall be recorded in the office of the county recorder of the county where such real estate is situated; and every such conveyance not so recorded" }, { "docid": "8336008", "title": "", "text": "Oil Co.), 65 B.R. 35 (Bankr.D.Kan.1986); Clark v. Kahn (In re Dlott), 43 B.R. 789 (Bankr.D.Mass.1983); Coup v. Great Plains Western Ranch Co. (In re Great Plains Western Ranch Co.), 38 B.R. 899 (Bankr.C.D.Cal.1984). See also, McAllester v. Aldridge (In re Anderson), 30 B.R. 995 (Bankr.M.D.Tenn.1983), where the court was so disturbed by the unjust enrichment caused by the operation of § 544(a)(3) upon the debtor’s defective transfer (an improperly acknowledged deed) that it imposed a constructive trust upon the property against the trustee in bankruptcy after the avoidance. . For example, where goods are entrusted to a merchant who deals in goods of that kind, the owner's rights can be lost to a buyer in ordinary course from the merchant but not to the merchant’s creditors. U.C.C. § 2-403. In other bailments, not even bona fide purchasers are protected. . Act of June 25, 1910, 36 Stat. 838. . The original provision, inserted by Act of June 25, 1910, 36 Stat. 838, as § 47(a)(2) of the Bankruptcy Act of 1898, read as follows: [S]uch trustees, as to all property in the custody or coming into the custody of the bankruptcy court, shall be deemed vested with all the right, remedies, and powers of a creditor holding a lien by equitable or legal proceedings thereon; and also, as to all property not in the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a judgment creditor holding an execution duly returned unsatisfied. .\"[T]he petitioner, even though the true owner, cannot prevail in this contest with the trustee in bankruptcy who, by force of law, stands here as the ideal creditor, irreproachable and without notice, armed cap-a-pie with every right and power which is conferred by the law of the state upon its most favored creditor who has acquired a lien by legal or equitable proceedings.” In re Waynesboro Motor Co., 60 F.2d 668, 669 (S.D.Miss.1932). . Section 541(d) provides: (d) Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest," }, { "docid": "9340846", "title": "", "text": "interests will not prevent the trustee from asserting the rights of a hypothetical purchaser without such knowledge. Several recent bankruptcy court decisions have denied motions to reform deeds based on the trustee’s powers as set forth in 11 U.S.C. § 544(a)(3). In re Cunningham, 48 B.R. 509 (Bankr.M.D.Tenn.1985); In re R & J Construction Co., 43 B.R. 29 (Bankr.E.D.Mo. 1984); In re Boardwalk Development Co., Inc., 72 B.R. 152 (Bankr.E.D.N.C.1987).” In the present case, the powers of the Trustee having been set in motion by the filing of the bankruptcy of the debtor, plaintiffs cannot now be granted the opportunity to reform their mortgage. It must be noted at this point that Plaintiffs have cited numerous times the case of McCannon v. Marston, 679 F.2d 13 (3rd Cir.1982) concerning the powers of the Trustee under the provisions of § 544(a) (“the strong arm clause”). It should be clearly pointed out that plaintiffs are correct in their statement of the law as presented in that case. However, the matter before us is readily distinguishable from those of McCannon, supra. In that case, the powers of the Trustee were held to be invalid due to his being on notice as to the rights of another party. This notice being that the party which defeated the Trustee’s power was in actual possession of the property in question. (Emphasis supplied). In the present matter, Northeastern was not in actual possession of the property when the Trustee was appointed. Additional research conducted reveals that in the cases citing McCannon, supra, there exists a common element. The common element is that in each incident the notice that the Trustee was provided was one of clear and open possession [See In re Matter of Pasquale Alberto, 66 B.R. 132 at 138 (Bankr.D.N.J.1985) ], or was on constructive notice sufficient to indicate the existence of a claim of possession by another. In re R.A. Beck Builders, Inc., 66 B.R. 666 at 671 (Bankr.W.D.Pa.1986). Such is not the case here as Northeastern was not in possession of the property at the time of the bankruptcy filing, nor was it" }, { "docid": "19315336", "title": "", "text": "interest in the real estate are to be determined by applicable state law. The court noted that under Maine law, an unrecorded conveyance is ineffective “against any person except the grantor, his heirs and devisees, and persons having actual notice thereof.” Therefore, the deed could not be reformed and the trustee, as an intervening third party, i.e., as a hypothetical judicial lien creditor, was held to have rights in the property superior to those of the bank.” The bankruptcy court properly recognized that although the trustee’s status is conferred by federal bankruptcy law, his rights vis-a-vis other parties are to be determined by reference to state law. This point is well settled. See, e.g., McCannon v. Marston, 679 F.2d 13 (3d Cir.1982); In re Gurs, 27 B.R. 163, 10 B.C.D. 128 (Bkrtcy. 9th Cir.1983); In re Minton Group, Inc., 27 B.R. 385,10 B.C.D. 91 (Bkrtcy.S.D.N.Y.1983); In re Steele, 27 B.R. 474 (Bkrtcy.W.D.Wis.1983); In re Lewis, 19 B.R. 548 (Bkrtcy.D.Idaho 1982); In re Vezinot, 20 B.R. 950 (Bkrtcy.W.D.La.1982); In re TMIC Industrial Cleaning Co., 19 B.R. 397 (Bkrtcy.W.D.Mo.1982); In re Elin, 20 B.R. 1012 (D.N.J.1982); In re Midwestern Food Stores, Inc., 21 B.R. 944 (Bkrtcy.S.D.Ohio 1982) (applying Kentucky law); In re Toledo, 17 B.R. 914 (D.P.R.1982); In re Richardson, 23 B.R. 434, 9 B.C.D. 895 (Bkrtcy.D.Utah 1982); Federal National Mortgage Association v. Westmoreland, 19 B.R. 130 (Bkrtcy.N.D.Fla.1981); In re Ireland, 14 B.R. 849 (Bkrtcy.M.D.La.1981); In re Gringeri Brothers Transportation Co., 14 B.R. 396 (Bkrtcy.D.Mass.1981) (Act case analyzing Act § 70(c)); and In re Harms, 7 B.R. 398 (Bkrtcy.D.Colo.1980). In construing the rights of the trustee as a hypothetical bona fide purchaser and creditor under state law as against other parties, the phrase “without regard to the knowledge of the trustee” found in 11 U.S.C. § 544(a) does not give the trustee any greater rights than he, or any other person would have as a bona fide purchaser or creditor under applicable state law. See Marston v. McCannon, supra; In re Gurs, supra; In re Minton Group, Inc., supra; In re Jones, 20 B.R. 988 (Bkrtcy.E.D.Pa.1982); and In re Richardson, supra. That" }, { "docid": "18593670", "title": "", "text": "rights of a trustee); In re Carter, 2 B.R. 321 (Bankr.D.Colo.1980) (chapter 13 debtor lacks strong-arm powers). See generally Keith M. Lundin, Chapter 13 Bankruptcy § 3.38 (1990) (discussing conflict in the decisions on the question). The chapter 13 trustee, however, does have § 544(a) powers. Chapters 1, 3 and 5 are expressly applicable to cases under chapter 13. 11 U.S.C. § 103(a) (1988). There is general agreement that the chapter 13 trustee has such powers. Keith M. Lundin, Chapter 13 Bankruptcy § 3.64 (1990). Mrs. Perry’s beneficial interests would nevertheless survive a § 544(a) attack. I have recently treated at some length the ability of a constructive trust beneficiary to prevail against the strong-arm powers. See In re Mill Concepts Corp., 123 B.R. 938, 940-947 (Bankr.D.Mass.1991). I there held that under § 544(a)(3) the estate representative’s rights as a bona fide purchaser of real property are limited to avoiding transfers of real property made by a debtor, so that they have no application to property retained by a debtor subject to constructive trust. I came to this conclusion based upon the wording of the statute, its legislative and judicial history, its purpose, and the consistency thereby wrought between § 544(a)(3) and the design under § 541(d) to preserve constructive trust interests in bankruptcy. The same reasoning applies to Mrs. Perry’s equitable interests. The trustee’s rights unde* § 544(a)(1) and (2) as a judicial lien or judgment creditor are also junior to such equitable interests. E.g., N.S. Garrott & Sons v. Union Planters Nat’l Bank (In re Garrott & Sons, Inc.), 772 F.2d 462, 467 (8th Cir.1985) (constructive trust for the benefit of mortgagee imposed upon escrow fund needed to pay mortgage); City Nat’l Bank of Miami v. General Coffee Corp. (In re General Coffee Corp.), 828 F.2d 699, 706 (11th Cir.1987), cert. denied, General Coffee Corp. v. City Nat’l Bank, 485 U.S. 1007, 108 S.Ct. 1470, 99 L.Ed.2d 699 (1988) (constructive trust imposed upon inventory in favor of bank defrauded of funds used to purchase inventory); Vineyard v. McKenzie (In re Quality Holstein Leasing), 752 F.2d 1009, 1012 (5th" }, { "docid": "18573609", "title": "", "text": "in situations such as in the case at bar because it is settled in the Commonwealth that “[a]n attaching creditor stands in the position of a purchaser for value, and, as a deed duly recorded takes precedence of a prior deed unrecorded, so an attachment, when duly made, has the effect of a prior purchase and takes precedence of a prior unrecorded deed.” General Builders Supply Co. v. Arlington Coop Bank, supra, at 696-697, and authorities cited therein. Because they are treated the same, for the sake of convenience the Court will refer to trustee’s status as a bona fide purchaser of the Debtor at the time of the commencement of the case. The trustee’s status as a bona fide purchaser is “without regard to any knowledge of the trustee or of any creditor.” The phrase “without regard to any knowledge” means without regard to any personal knowledge that the trustee may have of competing interests in the Debtor’s property: these words do not nullify whatever protections holders of equitable interests may have under applicable state law. McCannon v. Marston, 679 F.2d 13 (3d Cir.1982); In re Morse, 30 B.R. 52 (Bankr. 1st Cir.1983); In re Gurs, 27 B.R. 163 (Bankr. 9th Cir.1983). Stated another way, section 544(a)(3) does not transform the trustee into a “super-priority creditor”; rather, the trustee may only defeat the Plaintiff’s equitable interest in the Property if under Massachusetts law a bona fide purchaser (or attaching creditor) of the Debtor’s interest in the subject Property would have prevailed over the Plaintiff as of the date of filing in bankruptcy. Id. Since reformation will not be ordered in Massachusetts against intervening bona fide purchasers and attaching creditors who do not have “notice” of the equitable right of reformation, the Court must consider Massachusetts’ concept of “notice” as it applies to the facts at hand. Massachusetts law provides that a conveyance of an estate in land is not valid against any person unless the transfer is recorded or unless that person has ‘actual notice’ of the unrecorded conveyance. M.G.L. c. 183 § 4. The statutory requirement of ‘actual" }, { "docid": "23023627", "title": "", "text": "record in the office of the clerk and ex officio recorder of the county where the real estate is situated. Ark.Code Ann. § 14-15-404 (Michie 1998). Pursuant to Arkansas law, a recorded deed provides constructive notice to a subsequent bona fide purchaser of the real estate. See, e.g., Massey v. Wynne, 302 Ark. 589, 791 S.W.2d 368, 369 (1990)(“Recorda-tion of an instrument which affects title to real property is constructive notice of that interest to all persons from the time the instrument is filed.”); Andrews v. All Heirs and Devisees of H.J. Bellis, 297 Ark. 3, 759 S.W.2d 532, 534 (1988)(Hays, J., dissenting)(“[R]ecordation ... becomes bnportant in order to give notice to subsequent bona fide purchasers.”); Hughes v. McCann, 13 Ark.App. 28, 678 S.W.2d 784, 786 (1984)(“[P]arties alleging fraud are charged with knowledge of any pertinent real estate conveyances from the time such conveyances are placed in public records.”); Davis v. Burford, 197 Ark. 965, 125 S.W.2d 789, 791 (1939)(recorded deed provides constructive notice to bona fide purchaser); Long v. Langsdale, 56 Ark. 239, 19 S.W. 603 (1892)(same). Under Arkansas law, a bona fide purchaser only prevails when he or she lacks notice of the transaction in question. A bona fide purchaser is charged with constructive notice of a transfer when the deed is recorded. Here, the deed was recorded prior to the filing of the involuntary bankruptcy petition. Therefore, the trustee, to whom constructive notice of the recorded deed is imputed, cannot utilize section 544(a)(3) to set aside the conveyance. See also Hamilton, 125 F.3d at 299 (Although actual knowledge of the trustee is irrelevant under section 544(a), constructive notice given by properly recorded instruments is charged to a person as a matter of law, regardless of the person’s actual knowledge.); In re Mill Concepts Corp., 123 B.R. 938, 941, 942 (Bankr.D.Mass.1991)(Section 544(a)(3) grants only the ability to avoid an unper-fected transfer by the debtor, and a trustee armed with the powers of a bona fide purchaser of real estate prevails over the holder of an unrecorded mortgage.); Graham, 110 B.R. at 413 (“[T]he state law of constructive notice" }, { "docid": "21977534", "title": "", "text": "hen on the Mattie Road Property. In such event, they contend the Bank is left without any claim whatsoever in the current bankruptcy. In support, the Trustee and Debtor rely on In re Peebles, 197 B.R. 799 (Bankr.W.D.Pa.1996) which simply held that where a lien of a mortgage is not properly recorded and the Bank’s in personam claim is discharged in a pending Chapter 7 proceeding, the lender is precluded from prosecuting a state court reformation action. But see In re Gounder, 266 B.R. 879, 881 (Bankr.E.D.Cal.2001) (“[effectively, the discharged debt is nonrecourse debt. Because of the chapter 7 discharge, the claimant cannot sue the debtor but it can foreclose on its security. The intervention of the chapter 13 petition and the application of section 506(a), however, prevent it from pursuing its collateral. Consequently, the claimant has an unsecured claim against the estate. It is entitled to be paid whatever [is paid generally to unsecured creditors], the prior chapter 7 discharge notwithstanding”). See also In re Haque, 331 B.R. 524 (Bankr.D.Mass.2005). The ultimate resolution of this issue is dependent on whether the Bank continues to possess a valid mortgage against the Mattie Road Property not subject to avoidance. Obviously, if the Bank prevails, the Plaintiffs’ reliance on Peebles is of no help since the absence of a security interest attaching to the subject property was critical to its holding. However, the need for making that determination may be rendered moot upon resolution of the central issue in this case. Therefore, the Court will reserve its decision on this issue pending determination of the bona fide purchaser status of the Trustee. Accordingly, there is no need at this time to decide the effect, if any, on the Bank’s claim in the event the Mortgage was avoided. CONCLUSION Although the Chapter 13 Trustee possesses standing to prosecute the avoidance claim set forth in the joint Objection/Complaint, proof of her ability to avoid the mortgage under applicable Pennsylvania law pursuant to 11 U.S.C. § 544(a)(3) is unclear based on the current record. The failure of Paul Rametta to date the first acknowledgment to" }, { "docid": "10048179", "title": "", "text": "re Comer), 723 F.2d 737, 739 (9th Cir.1984). Our standard of review for each of the particular issues raised on this appeal shall be discussed in the applicable sections of this opinion. ANALYSIS I. The Strong Arm Clause Title 11 U.S.C. § 544(a) (Supp. IV 1986), “the strong arm clause,” gives a bankruptcy trustee power to avoid certain transfers or liens against property in the bankruptcy estate. Section 544(a)(3) allows the trustee to avoid all obligations and transfers that would be avoidable by “a bona fide purchaser of real property ... that obtains the status of a bona fide purchaser ... at the time of the commencement of the [bankruptcy] case, whether or not such a purchaser exists.” Section 544(a) grants the bankruptcy trustee this power “without regard to any knowledge of the trustee or of any creditor.” The powers of a bona fide purchaser for purposes of section 544(a) are defined by state law. Maine Nat’l Bank v. Morse (In re Morse), 30 B.R. 52, 54 (Bankr. 1st Cir.1983); Saghi v. Walsh (In re Gurs), 27 B.R. 163, 164 (Bankr. 9th Cir.1983); C.R. Loup v. Great Plains W. Ranch Co., 38 B.R. 899, 905 (Bankr.C.D.Cal.1984); see 4 Collier on Bankruptcy 11544.02 (L. King 15th ed. 1986). Placer Savings & Loan Ass’n v. Walsh (In re Marino), 813 F.2d 1562, 1565 (9th Cir.1987). A debtor in possession has the same rights, powers, functions, and duties, except the right to compensation, as a bankruptcy trustee. 11 U.S.C. § 1107 (1982 & Supp. IV 1986). II. Constructive Notice Probasco argues that under California law Eads could not take title to Quail Meadows as a bona fide purchaser because he had constructive notice of Probasco’s ownership in the property. The law of California requires every conveyance of real property to be recorded in order to be valid against a subsequent purchaser or mortgagee of the same property, who in good faith and for valuable consideration records first. Thus, under California law a bona fide purchaser who records prevails over a prior transferee who failed to record. Actual or constructive notice of a prior" }, { "docid": "17583616", "title": "", "text": "638, 641 (Bankr.D.N.J.2000). Similarly, another court denied a debtor’s post-confirmation modification and a motion to determine secured status of a second priority mortgage claim by stating that “[s]ection 1327 binds the debtor and the secured creditor to the treatment provided in the confirmed plan.” In re Rutt, 457 B.R. 97, 101 (Bankr.D.Colo.2010). Here, the only request before the Court is Debtor’s Motion. The requested relief is not proposed as a post-confirmation plan modification or a motion to set aside or reconsider the confirmation order. Although there are many potential open issues as to whether a debtor may strip a wholly unsecured mortgage lien post-confirmation, Debtor’s request can not be granted in this context based on the res judicata effect of the plan. Debtor s brief relies on Rule 3008 and § 502(j) as the basis to allow the Court to reclassify BAC’s second priority lien. However, Debtor fails to establish why reconsideration of BAC’s claim is appropriate or how to handle the confirmed plan providing contradictory treatment. Further, the caselaw in support of Debtor’s position is inapplicable to the facts of this case. Because Debtor could have raised the value of his home and proposed treatment to strip the second priority lien at confirmation, the confirmation order is res judicata as to the value of Debtor’s home and the treatment of BAC’s second priority lien claim. In re Cruz, 253 B.R. at 641. Accordingly, it is ORDERED that Debtor’s Motion to Determine Secured Status of BAC Home Loan Servicing and to Strip Lien Effective Upon Discharge is hereby DENIED. The Clerk is directed to mail a copy of this Order to debtor, Debtor’s counsel, the Chapter 13 Trustee, and the parties on the attached distribution list. . The proof of claim secured by the second priority deed to secure debt was filed by The Bank of New York Mellon fka The Bank of New York as Trustee for the benefit of the certificate holders of CWHEQ, Inc. Home Equity Loan Asset-Backed Certificates, Series 2006-S9. BAC Home Loans Servicing, LP is the name to which notice and payment should be sent." }, { "docid": "9340845", "title": "", "text": "was first advanced in the matter of In re Hunt, 18 B.R. 504 (Bankr.E.D.Tenn.1982) in a situation similar to the instant one. Here, the Trustee’s rights have intervened and reformation of the mortgage between the debtors and Northeastern cannot be granted. Plaintiffs have raised as a counter-argument to the rights of the Trustee the issue of notice and constructive notice as to their rights in the property to which they seek to add to the mortgage. Again looking to the opinions of those writing on the issue previously the following is found: “Under this section § 544 the trustee may defeat a claim against the debtor’s estate if under the applicable state law, a hypothetical bona fide purchaser of real property in question would have prevailed over the claim as of the date of the bankruptcy filing. In re Dlott, 43 B.R. 789, 792-793 (Bankr.D.Mass.1983). The phrase ‘without regard to any knowledge of the trustee or any creditor’ appearing in § 544(a) meant that any actual knowledge that the trustee might have had of competing interests will not prevent the trustee from asserting the rights of a hypothetical purchaser without such knowledge. Several recent bankruptcy court decisions have denied motions to reform deeds based on the trustee’s powers as set forth in 11 U.S.C. § 544(a)(3). In re Cunningham, 48 B.R. 509 (Bankr.M.D.Tenn.1985); In re R & J Construction Co., 43 B.R. 29 (Bankr.E.D.Mo. 1984); In re Boardwalk Development Co., Inc., 72 B.R. 152 (Bankr.E.D.N.C.1987).” In the present case, the powers of the Trustee having been set in motion by the filing of the bankruptcy of the debtor, plaintiffs cannot now be granted the opportunity to reform their mortgage. It must be noted at this point that Plaintiffs have cited numerous times the case of McCannon v. Marston, 679 F.2d 13 (3rd Cir.1982) concerning the powers of the Trustee under the provisions of § 544(a) (“the strong arm clause”). It should be clearly pointed out that plaintiffs are correct in their statement of the law as presented in that case. However, the matter before us is readily distinguishable from those" }, { "docid": "23023628", "title": "", "text": "S.W. 603 (1892)(same). Under Arkansas law, a bona fide purchaser only prevails when he or she lacks notice of the transaction in question. A bona fide purchaser is charged with constructive notice of a transfer when the deed is recorded. Here, the deed was recorded prior to the filing of the involuntary bankruptcy petition. Therefore, the trustee, to whom constructive notice of the recorded deed is imputed, cannot utilize section 544(a)(3) to set aside the conveyance. See also Hamilton, 125 F.3d at 299 (Although actual knowledge of the trustee is irrelevant under section 544(a), constructive notice given by properly recorded instruments is charged to a person as a matter of law, regardless of the person’s actual knowledge.); In re Mill Concepts Corp., 123 B.R. 938, 941, 942 (Bankr.D.Mass.1991)(Section 544(a)(3) grants only the ability to avoid an unper-fected transfer by the debtor, and a trustee armed with the powers of a bona fide purchaser of real estate prevails over the holder of an unrecorded mortgage.); Graham, 110 B.R. at 413 (“[T]he state law of constructive notice remains applicable in the context of § 544(a)(3).”); Meininger v. Grigsby (In re Sperry), 101 B.R. 767, 769 (Bankr.M.D.Fla.1989)(“Under § 544(a)(3), the trustee assumes the position of a bona fide purchaser and may void a mortgage interest which was unrecorded as of the petition date.”). “Code § 544(a) provides the trustee with various statuses that, among other things, invalidate many transfers that are incomplete at the time of bankruptcy because the parties have not complied with applicable state recording laws.” 3 Norton Bankruptcy Law and Practice 2d § 54:1 (1997). In short, the recording of the deed pre-petition extinguished the trustee’s avoidance power under section 544(a)(3). B. Trustee’s Standing Under Section 511(b) “The powers under [Section] 544(b) are in addition to ... the powers under Section 544(a).” Brent Explorations, Inc. v. Karst Enters., Inc. (In re Brent Explorations, Inc.), 31 B.R. 745, 748 (Bankr.D.Colo.1983). Bankruptcy trustees use section 544(b) as a conduit to assert state-law-based fraudulent conveyance actions in bankruptcy. See Wintz Cos., 230 B.R. at 859. “Section 544(b) of the Bankruptcy Code gives the" }, { "docid": "12628222", "title": "", "text": "at the time of the fraud, “the Florida Supreme Court would reaffirm the majority approach that constructive trusts arise when the facts giving rise to the fraud occur.” In re General Coffee Corp., 828 F.2d 699, 702 (11th Cir.1987). . General Coffee, 828 F.2d at 704 (citing Quality Holstein Leasing, 752 F.2d at 1012; In re Elin, 20 B.R. 1012, 1015-16 (D.N.J. 1982), aff'd mem., 707 F.2d 1400 (3d Cir. 1983)). . Id. at 705 (citing In re Eads, 69 B.R. 730, 735 (9th Cir. BAP 1986); In re Cascade Oil Co., 65 B.R. 35, 42 (Bankr.D.Kan.1986); In re Great Plains Western Ranch Co., 38 B.R. 899, 906 (Bankr.C.D.Cal. 1984)). . Id. (citing Quality Holstein Leasing, 752 F.2d at 1013; In re Triple A Coal Co., 55 B.R. 806, 813 (Bankr.S.D.Ohio 1985); In re Earl Roggenbuck Farms, Inc., 51 B.R. 913, 917 (Bankr.E.D.Mich.1985)). . Id. (citing Quality Holstein Leasing, 752 F.2d at 1013. (internal quotations omitted)). . Id. (citing Cascade Oil Co., 65 B.R. at 39; In re Dlott, 43 B.R. 789, 792 (Bankr.D.Mass. 1983); Great Plains, 38 B.R. at 902-05; In re Anderson, 30 B.R. 995, 1009-10 (M.D.Tenn. 1983); Elin, 20 B.R. at 1016). . Id. (citing 4 L. King, Collier on Bankruptcy ¶ 541.01, 541-5 to 541-9 and ¶ 544.01, 544-2 to 544-4 (15th ed.1982); 2 W. Norton, Bankruptcy Law and Practice §§ 29.01 and 30.01 (1982)). . Id. (citing Great Plains, 38 B.R. at 907). . Omegas, 16 F.3d at 1452 (citing Quality Holstein Leasing, 752 F.2d 1009, 1013 (5th Cir.1985)). . Id. (citing Belisle v. Plunkett, 877 F.2d 512, 516 (7th Cir.1989) (criticizing Quality Holstein Leasing)). . The Court recognizes that the Trustee holds, for the benefit of all creditors in this estate, a second priority position arising from the avoidance of Mr. Graham’s improperly recorded Mortgage Modification Agreement. The Trustee merely is subordinated to Mr. Graham’s claim as a mortgagee with a lien on the Debtor's homestead property. Mr. Graham's interest arose from a mortgage voluntarily granted by the Debtor and is one of the three exceptions to homestead protection set forth in the Florida" }, { "docid": "15939896", "title": "", "text": "the fact that the Property has been sold to a third party and the post-sale recording of the 1993 Mortgage assignment creates an unexpected and unforeseen cloud in the title of the Property. This approach is commensurate with other cases from this District which have upheld the rights of the bankruptcy trustee under similar facts and applying Massachusetts law. See, Collins v. Bank of New England-West, N.A. (In re Daylight Dairy Prod., Inc.), 125 B.R. 1, 2 (Bankr. D.Mass.1991) (holding that a bank that mistakenly discharged its first priority mortgage on estate property could not seek relief against mistake in light of the trustee’s position as a bona fide purchaser). Finally, even if the Court were to find that equitable principles dictated rescission of the Discharge, under Massachusetts law, an unrecorded assignment of interest in real property is not valid as to parties without actual knowledge of the assignment. M.G.L.A. c. 183 § 4 (West 2003). Pursuant to § 544(a)(1) and (3), the Trustee stands in the shoes of a judicial lienholder and bona fide purchaser of the Property, as of the commencement of the case and without knowledge of the unrecorded assignment. As such, any interest that Rose Beaulac could claim by virtue of an assignment of the 1993 Mortgage recorded thereafter would have to cede to the Trustee’s rights. Accord, Gray v. Burke (In re Coletta Bros. of North Quincy, Inc.), 172 B.R. 159, 162-63 (Bankr.D.Mass.1994) (holding that an unrecorded judgment partitioning land would not be upheld given the trustee’s position as a bona fide purchaser where Massachusetts law would not validate the unrecorded judgment). V. CONCLUSION For the reasons set forth above, the Court grants summary judgment to the Trustee and holds that 1) the 1998 Mortgage is property of the estate pursuant to § 541(a) and the Trustee is free to discharge that Mortgage; 2) the discharge of the 1993 Mortgage will not be rescinded; and 3) Defendant Rose Beaulac has no claim to any proceeds of the sale of the Property by virtue of the 1993 Mortgage or any assignment thereof. A Judgment in conformance" }, { "docid": "8336007", "title": "", "text": "claim under the strong-arm clause because no creditor of the bankruptcy estate had extended credit after the conditional sales transaction. In Federáis, the court held that the trustee’s lien creditor status was insufficient to give him priority over a seller seeking to reclaim goods under U.C.C. § 2-702 because the trustee’s lien creditor status did not necessarily arise after delivery of the goods. Both decisions appear to be misreadings of Lewis v. Manufacturers Nat'l Bank, 364 U.S. 603, 81 S.Ct. 347, 5 L.Ed.2d 323 (1961). The Federáis case has been overruled by § 546(c) of the Code. The extended powers inserted in § 544(a)(1) and (2) have therefore been criticized as unnecessary. See L. King & M. Cook, Creditors’ Rights, Debtors’ Protection and Bankruptcy, 856 (1985). . See, e.g., McCannon v. Marston, 679 F.2d 13 (3d Cir.1982); Elin v. Busche (In re Elin), 20 B.R. 1012 (D.N.J.1982); Iowa-Missouri Realty Co. v. U.S. Small. Bus. Admin. (In re Iowa-Missouri Realty Co.), 86 B.R. 617 (Bankr.W.D.Mo.1988); D & F Petroleum v. Cascade Oil Co. (In re Cascade Oil Co.), 65 B.R. 35 (Bankr.D.Kan.1986); Clark v. Kahn (In re Dlott), 43 B.R. 789 (Bankr.D.Mass.1983); Coup v. Great Plains Western Ranch Co. (In re Great Plains Western Ranch Co.), 38 B.R. 899 (Bankr.C.D.Cal.1984). See also, McAllester v. Aldridge (In re Anderson), 30 B.R. 995 (Bankr.M.D.Tenn.1983), where the court was so disturbed by the unjust enrichment caused by the operation of § 544(a)(3) upon the debtor’s defective transfer (an improperly acknowledged deed) that it imposed a constructive trust upon the property against the trustee in bankruptcy after the avoidance. . For example, where goods are entrusted to a merchant who deals in goods of that kind, the owner's rights can be lost to a buyer in ordinary course from the merchant but not to the merchant’s creditors. U.C.C. § 2-403. In other bailments, not even bona fide purchasers are protected. . Act of June 25, 1910, 36 Stat. 838. . The original provision, inserted by Act of June 25, 1910, 36 Stat. 838, as § 47(a)(2) of the Bankruptcy Act of 1898, read as follows:" }, { "docid": "13894866", "title": "", "text": "contract, or instrument of writing shall be recorded, as aforesaid, before the recording of the deed or conveyance or the entry of the judgment under which such subsequent purchaser, mortgagee, or judgment creditor shall claim. Nothing contained in this act shall be construed to repeal or modify any law providing for the lien of purchase money mortgages (emphasis added). Clearly, without any reference to the facts which testimony has proven to be disputed, it can be ascertained that the Deed of the Debtor’s Property to Gordon has never been recorded, within either ninety days or six months or at any time after the purported conveyance of same on December 7, 1983. Therefore, pursuant to the clear terms of 21 P.S. § 444 and 21 P.S. § 351, the Deed is void as to any subsequent bona fide purchaser for a valid consideration, or any mortgagee or holder of a judgment against the Debtor, i.e., the “ideal” hypothetical lienholder, judgment creditor, or bona fide purchaser of the Debtor’s property whose presence is assumed in a § 544(a) analysis. We recognize that, as between the Debt- or on one hand and Gordon and the Estate on the other hand, outside of bankruptcy, the recording defect would not affect the validity of the Deed. See In re Rice, 126 B.R. 189, 192 (Bankr.E.D.Pa.1991) (“Rice /”); In re Aikens, 83 B.R. 344, 347 (Bankr. E.D.Pa.1988) (“Aikens I”); In re Chandler, 76 B.R. 460, 463-64 (Bankr.E.D.Pa. 1987); In re Morrison, 69 B.R. 586, 590 (Bankr.E.D.Pa.1987); and In re McLaughlin, 28 B.R. 575, 576 (Bankr.E.D.Pa.1983). However, if that same Debtor attacks the Deed in the shoes of a trustee under § 544(a), a different result will ensue if the Defendant cannot establish that the Deed has been validly recorded. See In re Rice, 133 B.R. 722, 728 (Bankr.E.D.Pa.1991) (“Rice //”); Rice I, supra, 126 B.R. at 192, 194, 195; and In re Aikens, 94 B.R.-869, 872 (Bankr.E.D.Pa.) (“Aikens III”), aff'd sub nom. In re Aikens v. City of Philadelphia, 100 B.R. 729 (E.D.Pa.) (“Aikens IV”), aff'd sub nom. McLean v. City of Philadelphia, 891 F.2d 474" }, { "docid": "21977518", "title": "", "text": "at the time the Debtor commenced his bankruptcy case. In re Johnston, 333 B.R. 724, 732 (Bankr.W.D.Pa.2005); In re Speer, 328 B.R. 699 (Bankr.W.D.Pa.2005). Thus, if a bona fide purchaser would prevail with respect to a previous transfer, lien or encumbrance, the Trustee will similarly prevail. Midlantic National Bank v. Bridge, 18 F.3d 195, 200 (3d Cir.1994). The scope of a trustee’s “strong-arm powers” pursuant to Section 511(a)(3) is reliant upon the state substantive law in which the property affected by the transfer, lien or encumbrance is located. Midlantic National Bank, 18 F.3d at 199. In Pennsylvania, for one to attain the status of a bona fide purchaser of real property that person or entity must acquire the property without actual or constructive notice of a prior interest in the property. See 21 P.S. §§ 351, 357; 16 P.S. § 9853; First Citizens National Bank v. Sherwood, 583 Pa. 466, 879 A.2d 178 (2005) (purchaser of real property has constructive notice of a mortgage if properly recorded even if defectively indexed); see also Butler v. Lomas & Nettleton Company, 862 F.2d 1015 (3d Cir.1988); In re Johnston, 333 B.R. at 732. Either constructive or actual notice of third party rights will defeat the claim of “bona fide purchaser” status by a subsequent purchaser, including the Chapter 13 Trustee. McCannon v. Marston, 679 F.2d 13 (3d Cir.1982); In re Speer, 328 B.R. 699 (Bankr.W.D.Pa.2005). The objective of the recording requirements, of course, is to give notice of the existence of any transfer, lien, encumbrance, or the like, affecting the property in question. Schwab v. GMAC Mortgage, 333 F.3d 135 (3d Cir.2003). Failure to Date Acknowledgment The Debtor claims that the recorded Mortgage is not valid because the second, executed acknowledgment by Houser is fraudulent. There is no dispute that on September 16, 1998, Houser executed the second acknowledgment outside the Debtor’s presence and without the benefit of his signature. However, the Court need not determine whether the failure of the Debtor to appear before Houser renders the Houser acknowledgment fraudulent thereby invalidating the Mortgage for record notice purposes. Under the present" }, { "docid": "9340844", "title": "", "text": "A.2d 301 (1951). Since this issue has received the attention of a number of writers in other jurisdictions, it is useful to recite their opinions as to the issues presented in such a case. In re Cunningham, 48 B.R. 509, 512 (Bankr.M.D.Tenn.1985), outlines what effect the appointment of a Trustee has when the issue is one of reformation of a deed of trust. “However, this rule does not apply when third parties have acquired an interest in real property omitted from a deed without notice of the original grantee’s adverse claim. In case of mutual mistake, relief is afforded against those who claim under the grantor except against those who by reason of being bona fide holders for value without notice have an equity superior to the grantee. Such a third party is the trustee in Bankruptcy who under 11 U.S.C. § 544(a) has the rights of a bona fide purchaser for value without notice.” We find nothing in the present situation that would cause us to reject the reasoning cited above. Additionally, this reasoning was first advanced in the matter of In re Hunt, 18 B.R. 504 (Bankr.E.D.Tenn.1982) in a situation similar to the instant one. Here, the Trustee’s rights have intervened and reformation of the mortgage between the debtors and Northeastern cannot be granted. Plaintiffs have raised as a counter-argument to the rights of the Trustee the issue of notice and constructive notice as to their rights in the property to which they seek to add to the mortgage. Again looking to the opinions of those writing on the issue previously the following is found: “Under this section § 544 the trustee may defeat a claim against the debtor’s estate if under the applicable state law, a hypothetical bona fide purchaser of real property in question would have prevailed over the claim as of the date of the bankruptcy filing. In re Dlott, 43 B.R. 789, 792-793 (Bankr.D.Mass.1983). The phrase ‘without regard to any knowledge of the trustee or any creditor’ appearing in § 544(a) meant that any actual knowledge that the trustee might have had of competing" } ]

[ { "docid": "22689032", "title": "", "text": "of Strawbridge v. Curtiss, 3 Cranch 267. Upon examination of the Spanish law the district judge also declined jurisdiction “even in admiralty as a matter of discretion.” 142 F. Supp., at 574. The Spanish law provides Romero with a lifetime pension of 35% to 55% of his seaman’s wages which may be increased by one-half if the negligence of the shipowner is established; it also allows the recovery of the Spanish counterpart of maintenance and cure. These rights under the Spanish law may be enforced through the Spanish consul in New York. The Court of Appeals affirmed the dismissal of the complaint, 244 F. 2d 409. We granted certiorari, 355 U. S. 807, because of the conflict among Courts of Appeals as to the proper construction of the relevant provision of the Judiciary Act of 1875 (now 28 U. S. C. § 1331) and because of questions raised regarding the applicability of Lauritsen v. Larsen, 345 U. S. 571, to the situation before us. The case was argued during the last Term and restored to the calendar for reargument during the present Term. 356 U. S. 955. I. Jurisdiction. (a) Jurisdiction under the Jones Act. — The District Court dismissed petitioner’s Jones Act claims for lack of jurisdiction. “As frequently happens where jurisdiction depends on subject matter, the question whether jurisdiction exists has been confused with the question whether the complaint states a cause of action.” Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U. S. 246, 249. Petitioner asserts a substantial claim that the Jones Act affords him a right of recovery for the negligence of his employer. Such assertion alone is sufficient to empower the District Court to assume jurisdiction over the case and determine whether, in fact, the Act does provide the claimed rights. “A cause of action under our law was asserted here, and the court had power to determine whether it was or was not well founded in law and in fact.” Lauritzen v. Larsen, 345 U. S. 571, 575. (b) Jurisdiction under 28 U. S. C. § 1881. — Petitioner, a Spanish subject," } ]

[ { "docid": "7893659", "title": "", "text": "WOODBURY, Chief Judge. A Greek seaman on a Liberian flag vessel owned by a Liberian corporation was injured on his vessel, the “World Luck,” while it was anchored in Boston Harbor in the course of a voyage from Italy to Japan. He was taken to the United States Public Health Service Hospital in Boston for treatment and apparently while he was still there his proctors libeled the vessel in rem stating three causes of action, one for unseaworthiness, another for negligence under the Jones Act and a third for maintenance and cure. The seaman gave his deposition and was repatriated to Greece where so far as is known he still resides. On motion of the owner, Menelaus Shipping Co., Ltd., as claimant, the court below dismissed all three counts of the libel on the authority of Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), and Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), plus Plamals v. Pinar Del Rio, 277 U.S. 151, 48 S.Ct. 457, 72 L.Ed. 827 (1928), as to the Jones Act count, and the libellant appealed. We think the District Court’s action was correct. The Court in Plamals v. Pinar Del Rio, supra, held that the Jones Act does not create a maritime lien but gives rise only to an action in personam against the shipowner, wherefore the Act could not be enforced in admiralty by suit in rem. And the Court in Lauritzen v. Larsen, supra, 345 U.S. at page 574, 73 S.Ct. 921, reaffirmed that holding. The Jones Act count was properly dismissed on the authority of these cases if for no other reason. The other two counts are under the general maritime law without specification of the maritime law of any particular country. Insofar as the general maritime law of the United States is concerned, we think these counts were properly dismissed for failure to state a claim upon which relief could be granted on the authority of the Lauritzen and Romero cases cited herein above, which hold that the general" }, { "docid": "18916444", "title": "", "text": "in a court of the United States. Therefore, it would be improper to burden the United States Court for the Eastern District of Louisiana with this litigation. In considering a motion to transfer or dismiss the Court accepts as true only the facts agreed upon by the parties and the allegations of the complaint and answer which have not been traversed by the language contained in opposing pleadings or arguments. See e.g., Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 729, 83 L.Ed. 1111 (1939). Broad, conclusory legal statements which conflict do not establish a question of fact unless the factual allegations underlying the conclusory statements are themselves in conflict. Id. It has been suggested that the initial inquiry in determining a forum non conveniens issue is the choice of law to be applied. Fisher v. Agios Nicolaos V, 628 F.2d 308, 315 (5th Cir.1980), cert, denied sub nom. Valmas Brothers Shipping, S.A. v. Fisher, 454 U.S. 816, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981). This Court adopts such an approach because if “the correct choice of law decision is to apply foreign law ... a district court’s discretion in granting a forum non conveniens dismissal will not ordinarily be disturbed on review” but, on the other hand, “if United States law is applicable, the American court should retain jurisdiction.” Id. Choice of Law — Basic Analysis In this case three nations, the Philippines, Saudi Arabia and the United States, have interests implicated by these claims. The question at hand is whether American or foreign law applies. Logic indicates that if the interests of either of the two foreign countries involved in this ease substantially outweigh the interests of the United States, then foreign law applies. However, rather than compare the concerns of all three states, the Court will compare only the interests of the United States and the Philippines. In three cases, Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953); Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 769 (1959); Hellenic Lines Ltd. v. Rhoditis, 398" }, { "docid": "14355949", "title": "", "text": "necessarily controlling, should be given substantial weight. Upon a consideration of all the circumstances the Court concludes that this is a case in which jurisdiction should be retained. We now turn to the choice of law issue. Although the parties are both nationals of Greece, neither has pleaded the law of Greece nor urged its adoption. The respondent presses the Court to apply the law of Liberia. It relies upon the doctrine known as “the law of the flag” and the case of Lauritzen v. Larsen, 1953, 345 U.S. 571, 73 S.Ct. 921, 929, 97 L.Ed. 1254. However, neither is dis-positive of the issue. While it has often been said that “a merchant ship is part of the territory of the country whose flag she flies,” this has been described by the Supreme Court as “a figure of speech, a metaphor” which “is chiefly applicable to ships on the high seas, where there is no terri torial sovereign; and as respects ships in foreign territorial waters it has little application beyond what is affirmatively or tacitly permitted by the local sovereign.” Thus we are left with the same basic question whether upon the facts in this case an American court will adopt a foreign law as its own in determining the rights of the parties. Lauritzen v. Larsen, upon which respondent relies to obtain the application of Liberian law, was an action by a foreign seaman under the Jones Act, 46 U.S.C.A. § 688. There the libelant and respondent were Danish citizens; the ship was of Danish flag and registry. The only United States contact was the signing of articles in New York City. These provided that the rights of crew members would be governed by Danish law. The libelant was injured in Havana, Cuba. The Court held that there was no jurisdiction under the Jones Act when the only United States contact was limited to the signing of the articles. In holding the Act inapplicable, the law of the flag was but one of the factors which was taken into account. The Court specified certain criteria to be considered" }, { "docid": "17640475", "title": "", "text": "be granted. First, the court’s dismissal was not based on jurisdictional grounds. The court held that it had jurisdiction to consider the claim, Chirinos de Alvarez v. Creole Petroleum Corporation, 462 F.Supp. 782, 785 (D.Del.1978), a determination with which we agree. The Supreme Court’s comments in Romero v. International Terminal Operating Co., 358 U.S. 354, 359, 79 S.Ct. 468, 473, 3 L.Ed.2d 368 (1959) confirm the correctness of that holding: Petitioner asserts a substantial claim that the Jones Act affords him a right of recovery for the negligence of his employer. Such assertion alone is sufficient to empower the District Court to assume jurisdiction over the case and determine whether, in fact, the Act does provide the claimed rights. “A cause of action under our law was asserted here, and the court had power to determine whether it was or was not well founded in law and in fact.” Lauritzen v. Larsen, 345 U.S. 571, 575, 73 S.Ct. 921, 97 L.Ed. 1254 [1953]. Second, the district court relied only in part on forum non conveniens principles. It noted that the plaintiffs did not “seriously contend that the factors by which forum non conveniens issues are to be determined . do not weigh in favor of Venezuela if the governing law is determined to be that of Venezuela.” 462 F.Supp. at 785. The plaintiffs have affirmed that position to this court. Reply Brief for Appellants at 11. It stated that therefore “the controlling question is whether the Jones Act and the United States general maritime law” are applicable. Id. Thus, ,the district court’s decision was principally concerned with whether the plaintiffs were entitled to relief under United States law, and as such, it was in the nature of a decision on a motion for summary judgment. Therefore, all factual disputes and inferences are to be resolved favorably for the plaintiffs. Adickes v. S. H. Kress and Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Wright, Law of Federal Courts, ¶ 99 (2d ed. 1970). The plaintiffs argue that the district court made a number of improper inferences." }, { "docid": "6828256", "title": "", "text": "Employment Service, 4 Cir. 1967, 377 F.2d 239, cert. denied, 389 U.S. 877, 88 S.Ct. 177, 19 L.Ed.2d 166. Thus, a claim that is not timely filed is subject to dismissal either on the ground that the plaintiff has not stated a claim for which relief could be granted, or, if the facts do not appear on the face of the pleadings, on motion for summary judgment. But these are dismissals because the claim has no merit, not because the court lacks subject matter jurisdiction. The jurisdictional portion of the statute is not qualified. It contains no provision withdrawing jurisdiction with respect to claims that are either not timely filed or are without merit for some other reason. When it has considered other statutes, the Supreme Court has held that a claim’s lack of merit (because it does not meet statutory prerequisites) does not imply a lack of jurisdiction in the court to consider and reject it. Romero v. International Terminal Operating Co., 1959, 358 U.S. 354, 359, 79 S.Ct. 468, 473, 3 L.Ed.2d 368; Lauritzen v. Larsen, 1953, 345 U.S. 571, 574, 73 S.Ct. 921, 924, 97 L.Ed.2d 1254. See, EEOC v. L. & N. R. Co., 5 Cir. 1974, 505 F.2d 610, cert. denied, 1975, 423 U.S. 824, 96 S.Ct. 39, 46 L.Ed.2d 41, where this court held the 180 day period provided for suits by the EEOC, 42 U.S.C. § 2000e-5(f)(l) is not a jurisdictional limitation. That same result should be reached here. Indeed, this court has recognized: [The filing requirement in Title VII] is not ‘jurisdictional’ in the sense that compliance with it vel non determines the jurisdiction of the district court, without respect to any other circumstances in a particular case. We accept the view that the requirement should be analogized to statutes of limitation. Equitable modifications, such as tolling and estoppel, should also be applied here. * # # * sfc * [I]t is clear that the Supreme Court and this court have not treated time limitations contained in Title VII as inflexible ‘jurisdictional’ absolutes, but have modified them in the interest of giving" }, { "docid": "23220196", "title": "", "text": "1958, and awarded Firipis such wages plus the statutory double wages for non-payment without sufficient ■cause. Additionally, the court granted Firipis $754.79 for unpaid maintenance. ■On this appeal, the shipowner contests everything except the award for maintenance. I. Applicability of the Jones Act. The Margaritis, an American built liberty ship, flew the flag of the Republic of Honduras and the articles executed by the libellant were Hondurian, stating that in the case of accident, Hondurian law should be applied. The .shipowner insists that the law of the flag, which was proven below, should control, and therefore the District Court committed error in holding the Jones Act applicable. The leading case dealing with the applicability of the Jones Act where there are contacts with more than one nation is Lauritzen v. Larsen, 1953, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254. There, the Supreme Court discussed .seven factors to be considered in determining the proper choice of law: (1) the place of the wrongful act, (2) the law of the flag, (3) the allegiance or domicile of the injured seaman, (4) the allegiance of the shipowner, (5) the place of contract, (6) inaccessibility of a foreign forum, (7) the law of the forum. It is clear from the Court’s opinion that very little weight is to be given the last three, and we will not discuss them further except to note that the articles covering the trip from Bremen to Norfolk were signed on the high seas and validated in New York, and that there is no problem about the accessibility of a foreign forum, as the libellant could have his claim adjudicated by the Hondurian Consul in Norfolk. Among the various factors set forth in Lauritzen, the most important is the law of the flag. It was there said that “the weight given to the ensign overbears most other connecting events in determining applicable law.” 345 U.S. at page 585, 73 S.Ct. at page 930. See also Romero v. International Terminal Co., 1959, 358 U.S. 354, 381 et seq., 79 S.Ct. 468, 3 L.Ed.2d 368. However, if the law" }, { "docid": "15042196", "title": "", "text": "Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), and the Court’s remarks there are equally pertinent here (p. 359 of 358 U.S., p. 473 of 79 S.Ct.): “The District Court dismissed petitioner’s Jones Act claim for lack of jurisdiction. ‘As frequently happens where jurisdiction depends on subject matter, the question whether jurisdiction exists has been confused with the question whether the complaint states a cause of action.’ Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 249 [71 S.Ct. 692, 95 L.Ed. 912], Petitioner asserts a substantial claim that the Jones Act affords him a right of recovery for the negligence of his employer. Such assertion alone is sufficient to empower the District Court to assume jurisdiction over the case and determine whether, in fact, the Act does provide the claimed rights. ‘A cause of action under our law was asserted here, and the court had power to determine whether it was or was not well founded in law and in fact.’ Lauritzen v. Larsen, 345 U.S. 571, 575 [73 S.Ct. 921, 924, 97 L.Ed. 1254].” However, since the facts are undisputed, and the case presents only a question of law, we shall treat the motion as one for summary judgment. Section 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b) provides: “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— * * * “(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” It is unnecessary, for present purposes, to consider the implementing Rule X-10B-5, of the Securities Exchange Commission. Briefly stated, the transactions in question were effected through telephone conversations between plaintiff," }, { "docid": "11039267", "title": "", "text": "Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), and Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970), the district court lacked subject matter jurisdiction over plaintiffs Jones Act and general maritime law unseaworthiness claims. Because subject matter jurisdiction restrictions impose a limit on the power of the federal courts to entertain an action, we must first consider whether the district court had subject matter jurisdiction over plaintiffs suit. If the district court lacked such jurisdiction, it would be our duty to vacate the judgments in plaintiffs favor and direct the district court to dismiss her action. We hold that the district court had subject matter jurisdiction over this suit. This ruling primarily reflects a disagreement with defendants’ premise that the Lauritzen triad (composed of Lauritzen, Rhoditis, and Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959)) provides the framework for determining whether a district court has subject matter jurisdiction in Jones Act or general maritime law cases. A. The Non-Jurisdictional Nature of the Lauritzen Choice-of-Law Analysis In Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), the Supreme Court enunciated a number of factors to be considered by courts evaluating whether a plaintiff may sue under the Jones Act. These factors include: (1) the place of the wrongful act, (2) the law of the flag, (3) the allegiance or domicile of the injured plaintiff, (4) the allegiance of the defendant, (5) the place of contract, (6) the inaccessibility of a foreign forum, and (7) the law of the forum. See Lauritzen, 345 U.S. at 583-92, 73 S.Ct. at 928-33. The Court reiterated the relevance of these factors in Romero, see 358 U.S. at 383, 79 S.Ct. at 486, and in Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970), it added the defendant’s base of operations to this list, id. at 309, 90 S.Ct. at 1734. Defendants believe that this inquiry determines whether the district court has subject matter jurisdiction. This" }, { "docid": "18989588", "title": "", "text": "Bi’itish Articles. The wages paid him and the working rules of the M/V BARLBY were in accordance with British law and British Articles. The alleged injury suffered by libelant on board the vessel occurred while the BARLBY was moored at New Orleans, Louisiana, at which city he was hospitalized for two weeks. The vessel was libeled in New Orleans and later released upon acceptance of an underwriter’s letter of undertaking, after the depositions of several officers and crew members were taken. The BARLBY then made her return voyage to Rotterdam, Holland. Libelant, subsequent to his release from the hospital, was repatriated to Rotterdam. The deposition of libelant, who speaks the Greek language, was taken through an interpreter. Respondent has filed a motion to dismiss the libel, or in the alternative, that all actions be stayed sixty days until the matter can be transferred to a court of convenient jurisdiction, after which this libel be dismissed. The asserted grounds for this motion are failure to state a cause of action under the Jones Act and forum non conveniens. Applying the criteria set forth in Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921, 97 L.Ed. 1254, (1953), to determine whether jurisdiction should be retained here, we find that the only factor present is that the alleged wrongful act occurred in American territorial waters in the Port of New Orleans in this jurisdiction. In Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), the Supreme Court used the Lauritzen guidelines, and held that although the accident to the Spanish seaman occurred aboard a ship temporarily in American territorial waters in New York harbor, it would affirm the dismissal of the seaman’s claims against his employer. The Court said (358 U.S. at 384, 79 S.Ct. at 486): “Although the place of injury has often been deemed determinative of the choice of law in municipal conflict of laws, such a rule does not fit the accommodations that become relevant in fair and prudent regard for the interests of foreign nations in the regulation of their own" }, { "docid": "6493867", "title": "", "text": "BONDY, District Judge. This is a motion to dismiss the first cause of action brought under the Jones Act, 46 U.S.C.A. § 688, to recover damages for injuries sustained aboard the SS Ferngrove and for an order declining jurisdiction of the second cause of action, for maintenance. Libelant, a citizen of the Kingdom of Norway and domiciled in Norway holding only Norwegian seamen’s papers, signed articles at the Norwegian Consulate in New York for service on the Ferngrove, a ship flying the Norwegian flag owned and operated .by respondents, citizens of Norway. The articles were written in Norwegian, which the libelant reads, writes, and speaks. Therein it is stated that the rights of crew members would be governed by Norwegian law. Libelant was injured aboard the Ferngrove while it was docked in Brooklyn. Under Norwegian law an injured seaman is entitled to maintenance, cure, one months “sick wages” amounting in this case to $90 and disability benefits. After the accident libelant became an in-patient for 20 days at the United States Marine Hospital at Staten Island, New York; thereafter he received out-patient treatment at the Norwegian Public Health Service until he was fit for duty. During this time he received board and lodging at the Norwegian Seamen’s House at respondent’s expense; and he received his sick wages at the Norwegian Consulate. Respondent’s motion to dismiss the first cause of action presents the question whether or not these facts authorize the application of the Jones Act to libelant’s claim for damages. To determine the application the following should be taken into consideration: 1. Place of Wrongful Act; 2. Law of the Flag; 3. Allegiance or Domicile of the Injured; 4. Allegiance of the Defendant-Shipowner; 5. Place of the Contract; 6. Inaccessibility of Foreign Forum; and 7. The Law of the Forum. See Lauritzen v. Larsen, 1953, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254. Though the injury occurred on a vessel in the territorial waters of the United States, that the United States is the place of contract and the forum, the Jones Act should not be applied. See Lauritzen" }, { "docid": "7280652", "title": "", "text": "Fe and the local Trinidad Oil Field Workers Union. The Trinidad government controlled the make-up of Mariner I’s work force by limiting the number of work permits for non-Trinidad nationals. A Trinidad statute directs that the civil law of Trinidad applies to any acts or omissions occurring in the course of the exploration or exploitation of its continental shelf. II. The question presented is whether the district court correctly determined that the law of Trinidad, rather than the Jones Act, applies to this case. This is a question of law subject to our de novo review. Plaintiffs contend that the Jones Act applies whenever a claimant can show that he is a “seaman” as defined by the statute. 46 U.S.C. § 688. Read literally, the Act would provide that an injured seaman of any nationality could maintain an action against any party over whom he could gain personal jurisdiction. But courts have never applied the Jones Act as broadly as a literal reading of it would require. The Supreme Court has indicated that the Jones Act applies “only to areas and transactions in which American law would be considered operative under prevalent doctrines of international law.” Lauritzen v. Larsen, 345 U.S. 571, 577, 73 S.Ct. 921, 926, 97 L.Ed. 1254 (1953). Thus, we must first determine, by the application of relevant choice-of-law criteria, whether the Jones Act applies in the particular factual setting of this case. See Romero v. International Terminal Operating Co., 358 U.S. 354, 382, 79 S.Ct. 468, 485, 3 L.Ed.2d 368 (1959); Lauritzen v. Larsen, supra, 345 U.S. at 576-83, 73 S.Ct. at 925-928; Chirinos de Alvarez v. Creole Petroleum Corp., 613 F.2d 1240, 1245-46 (3d Cir. 1980); Moncada v. Lemuria Shipping Corp., 491 F.2d 470, 472 (2d Cir.), cert. denied, 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667 (1974). A. Lauritzen and Rhoditis The relevant considerations for maritime choice-of-law decisions were set forth and applied in Lauritzen v. Larsen, supra, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254, and Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970)." }, { "docid": "17589314", "title": "", "text": "by Cia. Marítima San Basilio S.A., a Panamanian corporation. In support of its application to dismiss, Marítima submitted the affidavit of its vice president which stated: “None of the directors or shareholders of CIA MARITIMA SAN BASILIO S.A. are [sic] residents or citizens of the United States of America.” In the face of this unequivocal statement and the District Court’s finding in support thereof, I find inexplicable the majority’s statements that some or all of these stockholders are American citizens. The deposition referred to in footnote 5 of the majority opinion was not taken in this case. Indeed, we are not informed when and in what action it was taken, except that apparently it antedated 1962. The unsatisfactory excerpt from this mysteriously unidentified deposition, upon which my brothers rely, is set forth in its entirety in the margin. In it, Panaghi D. Marchessini testifies that he, his wife and two sons, are the shareholders of some unnamed corporation and that they are American citizens. At least five years after this testimony was taken, we stated in Garis v. Compania Maritima San Basilio, S.A., 386 F.2d 155, 157 (2d Cir. 1967) (per curiam) that Maritima’s “officers, directors, and stockholders were citizens and residents of Greece.” There is nothing in the record to indicate that the situation has changed since that opinion was written. When a complaint asserts a substantial claim under the Jones Act, the District Court has jurisdiction to determine whether in fact the Act does provide the rights upon which plaintiff relies. Romero v. International Terminal Operating Co., 358 U.S. 354, 359, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). The question before the District Court, therefore, was not one of jurisdiction. Rather, it was whether plaintiff’s cause of action is “well founded in law and in fact”, Lauritzen v. Larsen, 345 U.S. 571, 575, 73 S.Ct. 921, 924, 97 L.Ed. 1254 (1953); i. e. whether the Jones Act is applicable to any of the appellees under the facts of the case. Voyiatzis v. National Shipping & Trading Corp., 199 F.Supp. 920, 922 (S.D.N.Y.1961). If the Jones Act does apply," }, { "docid": "18989589", "title": "", "text": "non conveniens. Applying the criteria set forth in Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921, 97 L.Ed. 1254, (1953), to determine whether jurisdiction should be retained here, we find that the only factor present is that the alleged wrongful act occurred in American territorial waters in the Port of New Orleans in this jurisdiction. In Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), the Supreme Court used the Lauritzen guidelines, and held that although the accident to the Spanish seaman occurred aboard a ship temporarily in American territorial waters in New York harbor, it would affirm the dismissal of the seaman’s claims against his employer. The Court said (358 U.S. at 384, 79 S.Ct. at 486): “Although the place of injury has often been deemed determinative of the choice of law in municipal conflict of laws, such a rule does not fit the accommodations that become relevant in fair and prudent regard for the interests of foreign nations in the regulation of their own ships and their own nationals, and the effect upon our interests of our treatment of the legitimate interests of foreign nations. To impose on ships the duty of shifting from one standard of compensation to another as the vessel passes the boundaries of territorial waters would be not only an onerous but also an unduly speculative burden, disruptive of international commerce and without basis in the expressed policies of this country. The amount and type of recovery which a foreign seaman may receive from his foreign employer while sailing on a foreign ship should not depend on the wholly fortuitous circumstance of the place of injury.” Although it is fundamental that a court of Admiralty of the United States has jurisdiction over suits of a maritime nature between foreigners, the exercise of such jurisdiction is discretionary with the court with due regard to what is right and equitable under the law and the circumstances. Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520 (1931). See also Vavatsikos v. Goulandris Brothers, Ltd., E.D.La.," }, { "docid": "11039253", "title": "", "text": "plaintiff a large verdict on her Jones Act, general maritime law, and maintenance and cure claims. Molding the verdict in response to post-trial motions, the court modified and substantially reduced the ver-diet by applying to the unseaworthiness claim the percentage of contributory negligence found by the jury with respect to the Jones Act claims. Then, on cross-appeals, a panel of this court, invoking Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), vacated the entire judgment for the plaintiff on the ground that the district court had lacked subject matter jurisdiction over the action. We granted rehearing in banc and vacated the panel opinion and judgment. While the appeals present a large number of questions, we address only the subject matter jurisdiction, choice of law, and verdict molding issues. With respect to subject matter jurisdiction, we conclude that the multi-factored analysis established by Lauritzen, Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970) (together, the “Lauritzen triad”), governs choice of law, not subject matter jurisdiction, in Jones Act and American general maritime law claims. Then, applying the usual analyses for federal question and admiralty jurisdiction, we conclude that the district court had subject matter jurisdiction over this suit. Turning our attention to the multi-factored “substantial contacts” test of the Lauritzen triad, we adopt a two-stage interpretation of that test, subjecting the Lauritzen factors to a relatively simple sufficiency test followed by a more involved reasonableness inquiry. We first find American maritime law potentially applicable in this ease because the plaintiff is an American citizen. Accordingly, we consider whether applying American law is reasonable under the circumstances. Because the defendants did not inform the district court of the content of St. Lucian law, any interests St. Lucia might have in this case are undefined and, consequently, do little to render application of American law unreasonable. Additionally, in considering the significance of the various Lauritzen factors, we pay heed to the non-traditional context of this" }, { "docid": "7280653", "title": "", "text": "Act applies “only to areas and transactions in which American law would be considered operative under prevalent doctrines of international law.” Lauritzen v. Larsen, 345 U.S. 571, 577, 73 S.Ct. 921, 926, 97 L.Ed. 1254 (1953). Thus, we must first determine, by the application of relevant choice-of-law criteria, whether the Jones Act applies in the particular factual setting of this case. See Romero v. International Terminal Operating Co., 358 U.S. 354, 382, 79 S.Ct. 468, 485, 3 L.Ed.2d 368 (1959); Lauritzen v. Larsen, supra, 345 U.S. at 576-83, 73 S.Ct. at 925-928; Chirinos de Alvarez v. Creole Petroleum Corp., 613 F.2d 1240, 1245-46 (3d Cir. 1980); Moncada v. Lemuria Shipping Corp., 491 F.2d 470, 472 (2d Cir.), cert. denied, 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667 (1974). A. Lauritzen and Rhoditis The relevant considerations for maritime choice-of-law decisions were set forth and applied in Lauritzen v. Larsen, supra, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254, and Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). In Lauritzen, the Supreme Court enumerated seven factors that bear on whether the Jones Act applies: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured; (4) the allegiance of the defendant shipowner; (5) the place of contract; (6) the inaccessibility of the foreign forum; and (7) the law of the forum. Lauritzen taught that the appropriate law to apply would be determined by “ascertaining and valuing [the enumerated] points of contact between the transaction and the states or governments whose competing laws are involved.” 345 U.S. at 582, 73 S.Ct. at 928. As the only factor pointing toward the application of American law in Lauritzen was the place where the plaintiff’s maritime contract was signed, it was clear that the Jones Act did not apply. Nevertheless, the Court provided some general guidelines to consider in the “valuing” and “weighing” of the various factors. Id. Among other things, the Court in Lauritzen stressed that the law of the flag is generally of cardinal importance" }, { "docid": "21427602", "title": "", "text": "THOMSEN, Chief Judge. Libelant is a Greek citizen residing in Greece. The Liberian S/T Darnie is owned by respondent, United Cross Navigation Corp., a Liberian corporation, whose stockholders are Greek nationals residing in Greece. The original libel, in rem against the Darnie and in personam with clause of foreign attachment against her owner, alleged four causes of action: (1) for personal injuries caused by negligence of respondents; (2) for negligent failure to provide proper medical care; (3) for personal injuries caused by unseaworthiness; and (4) for maintenance and cure. An amended libel added (5) a claim for wages and penalties under 46 U.S.C.A. §§ 596, 597. The immediate problem is whether this court, in the exercise of its discretion, should decline jurisdiction of the four claims or causes of action which comprised the original libel and which are included in the amended libel along with the wage claim. Libelant originally joined the Darnie in June 1957 in Bayonne, N. J., signing Liberian articles, but was discharged in Brazil in December 1957 for an operation. He rejoined the Darnie in January 1958 in Campana, Argentina, and signed new Liberian articles calling for wages at £42 per month, plus 50?5 per hour for overtime. On February 28, 1958, he signed a paper acknowledging receipt of wages in full to that date. On April 14 or April 15 he was injured at sea, while cleaning tanks. Libelant claims the accident occurred on April 14, while the vessel was within three miles of the Florida coast; respondents contend the accident occurred on April 15, more than three miles off shore. The exact location of the vessel at the time of the accident is unimportant in this case because, all circumstances considered, the law of the flag — Liberian law— controls. Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254; Romero v. Int’ Operating Co., 79 S.Ct. 468. There is a dispute about what libelant did or was required to do after the accident, but the vessel arrived in Baltimore on April 17, and libelant was promptly taken to the U.S.P.H.S. hospital." }, { "docid": "9691048", "title": "", "text": "from the defendant, a foreign shipowner. After noting that the criteria listed in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), as supplemented by Hellenic Lines v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970) did not neatly fit this case, the district court concluded “that sufficient contacts were adduced to justify retaining jurisdiction over this cause and to make the application of American Law appropriate under the circumstances of this case. This conclusion is based upon a finding that the defendants conducted substantial business in United States ports and that plaintiff was treated for his medical condition in the United States while serving aboard defendant’s vessel and in their employment.” Whether the Jones Act applies in this case involves a question of choice of law, the determination of which requires a two-pronged inquiry. First, the court must decide, under choice of law principles, whether the law of the United States should be applied. If United States law applies, the case should not be dismissed for forum non conveniens. If the court determines that United States law does not apply, it then examines the traditional considerations of forum non conveniens to determine whether the court should exercise its discretion and decline to assert jurisdiction over the case. Volyrakis v. M/V ISABELLE, 668 F.2d 863 (5th Cir.1982); Chiazor v. Transworld Drilling Co., Ltd., 648 F.2d 1015 (5th Cir.1981). As we pointed out in Fisher v. Agios Nicolaos V, 628 F.2d 308, 316 (5th Cir.1980), the factors for determining the choice of law question have been set out by the United States Supreme Court in the Lauritzen — Romero — Rhoditis trilogy: Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970); Romero v. International Terminal Operating Company, 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953). Lauritzen set out seven connecting factors generally regarded as significant, to be listed below, and in the case before it held that the overwhelming preponderance of these factors" }, { "docid": "17640474", "title": "", "text": "motions must be treated as motions for summary judgment under Rule 56, Fed.R.Civ.P. and as such all factual questions must be resolved in their favor. We agree that all factual disputes should be resolved in favor of the plaintiffs. However, the plaintiffs have not shown us, nor have we been able to find, any instance where the district court made an improper determination which would cause us to reverse its decision. The order dismissing the plaintiffs’ complaint was issued in response to motions to dismiss submitted by both Exxon and Creole. The motions urged dismissal on the grounds that the court lacked subject matter jurisdiction, that the court was not the proper forum under the doctrine of forum non conveniens, and that the plaintiffs had not stated a cause of action upon which relief could be granted. Although the court did not clearly state so, it is apparent from a review of its decision that the dismissal was based primarily on the ground that the plaintiffs, had not stated a ground upon which relief could be granted. First, the court’s dismissal was not based on jurisdictional grounds. The court held that it had jurisdiction to consider the claim, Chirinos de Alvarez v. Creole Petroleum Corporation, 462 F.Supp. 782, 785 (D.Del.1978), a determination with which we agree. The Supreme Court’s comments in Romero v. International Terminal Operating Co., 358 U.S. 354, 359, 79 S.Ct. 468, 473, 3 L.Ed.2d 368 (1959) confirm the correctness of that holding: Petitioner asserts a substantial claim that the Jones Act affords him a right of recovery for the negligence of his employer. Such assertion alone is sufficient to empower the District Court to assume jurisdiction over the case and determine whether, in fact, the Act does provide the claimed rights. “A cause of action under our law was asserted here, and the court had power to determine whether it was or was not well founded in law and in fact.” Lauritzen v. Larsen, 345 U.S. 571, 575, 73 S.Ct. 921, 97 L.Ed. 1254 [1953]. Second, the district court relied only in part on forum non conveniens" }, { "docid": "8702164", "title": "", "text": "ALVIN B. RUBIN, District Judge. The complainants, Ioannis Zorgias and Dimitrios Velentzas, both citizens of Greece, here seek damages under the Jones Act and for unseaworthiness against Hellenic Lines Limited, a foreign corporation. The plaintiffs assert jurisdiction under the doctrine of Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). See also Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953) and Romero v. Int’l Terminal Operation Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). The defendants have moved for dismissal on grounds of res judicata, prescription under the Jones Act, and laches. The plea of res judicata derives from compromise agreements entered into between the defendant and by both plaintiffs and approved by a judge of competent jurisdiction in Greece. Rule 44.1 of the FRCP provides, “The court, in determining foreign law, may consider any relevant material or source, . whether or not . . . admissible under Rule 43. The court’s determination shall be treated as a ruling on a question of law.” To assist in interpretation of these compromise agreements, the defendants have. submitted the affidavit of Athanassios N. Yianno-poulos, a professor of law at Louisiana State University, who holds a diploma in law from the University of Thessaloniki, Greece, and who has been admitted to that Bar, and maintains an office in that city. As to the plaintiff Velentzas, he certifies that the “Record of Arrangement,” Exhibit A, is the judicial record of a compromise agreement made before and approved by a Justice of the Peace at Pireaus; that this is a regularly constituted court which had jurisdiction over this dispute and was competent to approve the agreement; that “the compromise agreement has the force of a valid contract, and with the Court’s approval, the force of a judicial decision,” and that it “ought to be given effect in the United States either as a contract or as a judicial decision.” The affiant’s oath as to the compromise signed by Zorgias is virtually identical. Thus, as between the suits in Greece and the" }, { "docid": "17589315", "title": "", "text": "in Garis v. Compania Maritima San Basilio, S.A., 386 F.2d 155, 157 (2d Cir. 1967) (per curiam) that Maritima’s “officers, directors, and stockholders were citizens and residents of Greece.” There is nothing in the record to indicate that the situation has changed since that opinion was written. When a complaint asserts a substantial claim under the Jones Act, the District Court has jurisdiction to determine whether in fact the Act does provide the rights upon which plaintiff relies. Romero v. International Terminal Operating Co., 358 U.S. 354, 359, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). The question before the District Court, therefore, was not one of jurisdiction. Rather, it was whether plaintiff’s cause of action is “well founded in law and in fact”, Lauritzen v. Larsen, 345 U.S. 571, 575, 73 S.Ct. 921, 924, 97 L.Ed. 1254 (1953); i. e. whether the Jones Act is applicable to any of the appellees under the facts of the case. Voyiatzis v. National Shipping & Trading Corp., 199 F.Supp. 920, 922 (S.D.N.Y.1961). If the Jones Act does apply, appellees’ liability must be determined in accordance with its broadly remedial substantive provisions. Dassigienis v. Cosmos Carriers & Trading Corp., 442 F.2d 1016, 1017 (2d Cir. 1971). Although challenges to Jones Act coverage are usually by motion to dismiss for lack of subject matter jurisdiction, Gilmore & Black, The Law of Admiralty, 481 (1975), appellees’ motion below was for summary judgment. Whatever the form of the motion, it was not the proper medium for deciding disputed questions of fact. Bernstein v. Universal Pictures, Inc., 517 F.2d 976, 979 (2d Cir. 1975); Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975). The facts either warrant the application of the Jones Act or they do not, Bartholomew v. Universe Tankships, Inc., 263 F.2d 437, 443 (2d Cir.), cert. denied, 359 U.S. 1000, 79 S.Ct. 1138, 3 L.Ed.2d 1030 (1959); and the resolution of disputed questions of fact is for the trial. Rodriguez v. Solar Shipping, Ltd., 169 F.Supp. 79 (S.D.N.Y.1958). In my opinion, it is as erroneous to hold, on the basis of" } ]

[ { "docid": "7301", "title": "", "text": "JUA or the Secretary are clearly the “private property” of Plaintiffs for purposes of the Takings Clause. See Phillips, 524 U.S. at 164, 118 S.Ct. 1925 (“All agree that under Texas law the principal held in IOLTA trust accounts is the ‘private property’ of the client.”); see also Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980) (holding that funds deposited in interpleader fund for benefit of creditors are the property of creditors); cf. Flores Galarza, 484 F.3d at 30 (finding that the duplicate premiums “‘constitute a double payment for the same insurance,’ and, therefore, do not belong to JUA, but rather belong to private insured motorists.”) (quotations omitted and emphasis added). Second, the Secretary’s appropriation of the duplicate premiums constitutes a “final decision” for purposes of the finality prong. “[T]he finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury.” Id. at 15 n. 18 (quoting Williamson County, 473 U.S. at 193, 105 S.Ct. 3108) (emphasis added). As we stated in Flores Galarza, The case law addressing the first “hurdle” focuses on whether the administrative body responsible for applying the challenged regulations has completed discretionary review of the plaintiffs particular situation. Here, there is no pending administrative process that could, through a variance, waiver or other discretionary decision, modify the statute’s impact on the JUA. Id. at 15. The same is true here, as there is no pending process that would “modify the statute’s impact” on Plaintiffs. 2. The Just Compensation Prong Consequently, at issue is whether Plaintiffs have satisfied the second, “just compensation” prong. The just compensation prong presents some difficulty for Plain tiffs, since Procedure No. 96 provides a procedure to reimburse the duplicate premiums, and Plaintiffs refuse to avail themselves of it. By their own admission, Plaintiffs have not “sought compensation through the procedures the State has provided for doing so.” Id. at 14 (citations omitted); see also Williamson County, 473 U.S. at 197, 105 S.Ct. 3108 (holding that the takings claim in that" } ]

[ { "docid": "19601293", "title": "", "text": "2000) (en banc). As we have noted, \"ripeness can be characterized as standing on a timeline.\" Id. at 1138. In either event, what a party must show is that there is a true \" 'case or controversy,' \" that is, \"that the issues presented are 'definite and concrete, not hypothetical or abstract.' \" Id. at 1139 ; see also Lujan v. Defs. of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Moreover, ripeness doctrine does focus on timing and directs us to consider whether the claim a plaintiff is making keys on an alleged injury that is speculative because it \" 'rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.' \" Wolfson v. Brammer , 616 F.3d 1045, 1064 (9th Cir. 2010) ; see also Whitmore v. Arkansas , 495 U.S. 149, 158, 110 S.Ct. 1717, 1724-25, 109 L.Ed.2d 135 (1990) (\"Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be certainly impending to constitute injury in fact.\" (internal quotation marks omitted) ). Moreover, while there are times when a \"law is aimed directly at plaintiffs\" and there is reason to believe that it will be enforced against them, that is not the case here. The Executive Order itself is not directed toward the Counties at all; it is directed to Federal government officials only. If they obey its dictates, they will not overstep legal or constitutional boundaries. Nor have they threatened that they will knowingly do so. The parties do not dispute that in order to assess whether action will be taken against the Counties a three-part test should be applied to ripeness in this case. That is: \"whether the plaintiffs have articulated a 'concrete plan' to violate the law in question, whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and the history of past prosecution or enforcement under the challenged [law].\" Thomas , 220 F.3d at 1139. Application of the test demonstrates that this case is not ripe. First:" }, { "docid": "5958162", "title": "", "text": "the Takings Clause, which comes into play when private property is “taken” and when the sovereign has effected the taking without granting “just compensation.” U.S. Const, amend. V. For a takings claim to be ripe, prior state administrative and/or judicial processes not only must have wrought a taking of particular property but also must have established the sovereign’s refusal to provide just compensation for the property taken. See Williamson Cnty., 473 U.S. at 186, 194, 105 S.Ct. 3108; Downing/Salt Pond Partners v. Rhode Island, 643 F.3d 16, 20 (1st Cir.2011). In a regulatory takings case, satisfying the first of these requirements entails the existence of a final decision as to “the application of the regulations to the property.” Williamson Cnty., 473 U.S. at 186, 105 S.Ct. 3108. The plaintiffs complaint shows that he has fulfilled this requirement. The second ripeness requirement, however, has a different dimension. Satisfying it entails a showing that the plaintiff has run the gamut of state-court litigation in search of just compensation (provided, however, that the state makes available adequate procedures for this purpose). Id. at 194-95, 105 S.Ct. 3108. The plaintiff conflates these two distinct ripeness requirements. The DEM’s final decision to grant the permit and the superior court’s dismissal of his appeal only address the first of Williamson County’s two ripeness requirements. The completion of this regulatory process did not entail an occasion for the plaintiff to seek just compensation. To do so, he would have had to commence a separate proceeding — and he has not done so. The second ripeness requirement, therefore, is unfulfilled. See id. Second. To be sure, an exception to the second ripeness requirement may obtain if a state’s procedures for seeking just compensation are either “inadequate” or “unavailable.” Id. at 196-97, 105 S.Ct. 3108. But such exceptions are narrowly confined, and it is not enough for a plaintiff to show no more than that the adequacy of state procedures remains “unsure” or that such procedures remain “undeveloped.” Downing, 643 F.3d at 23 (internal quotation marks omitted). There is no need to belabor this point. Rhode Island courts recognize" }, { "docid": "5592551", "title": "", "text": "compensation.” Id. at 195, 105 S.Ct. at 3121. If a plaintiff has not pursued available state remedies, the case is not ripe because “the State’s action ... is not ‘complete’ until the State fails to provide adequate compensation for the taking.” Id. Thus, a plaintiff must demonstrate two things for a regulatory taking claim to be ripe: (1) that “the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue;” and (2) that if the state had a “reasonable, certain and adequate provision for obtaining [just] compensation ... at the time of the taking,” just compensation was sought and denied through that procedure. Williamson, 473 U.S. at 186, 194, 105 S.Ct. at 3116, 3120. Procedural due process and equal protection claims that are ancillary to taking claims are subject to the same Williamson ripeness requirements, i.e., procedural due process and equal protection claims ancillary to taking claims are not ripe for review unless the plaintiff has met the two elements above. See Bigelow, 970 F.2d at 158-60. The district judge held that the Arnetts failed to pursue administrative remedies available to them under Tenn.Code Ann. §§ 9 — 8—307(a)(1)(V) and 9 — 8—307(a) (2) (A) for physical and regulatory takings, and therefore, their Fifth and Fourteenth Amendment claims were not ripe. Applying the Williamson analysis to this case, this court first must ask whether (1) the removal and destruction of the duck blinds and (2) the denial of alleged riparian rights constituted final agency decisions. “[T]he finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury.... ” Williamson, 473 U.S. at 193, 105 S.Ct. at 3120. The removal and destruction of the Arnetts’ duck blinds is more properly characterized as a physical taking than as a regulatory taking, and it is clear that the initial decision-maker in this case, the TWRA, arrived at a definitive position inflicting an actual, concrete injury when its agents removed and destroyed the duck blinds. See Kruse v." }, { "docid": "12684109", "title": "", "text": "compensation. U.S. Const. amend. V, XIV; Cowell v. Palmer Twp., 263 F.3d 286, 290 (3d Cir.2001). Count Three of the complaint alleges that “the Ordinance and other actions of the defendants” regulated appellants’ property “into a state of economic inutility” without just compensation in violation of the Fifth and Fourteenth Amendments. The District Court dis missed this claim on ripeness grounds because appellants failed to comply with both prongs of the Williamson ripeness test. Appellants correctly argue that the finality rule only applies to as-applied Takings claims, and that they only challenge the Ordinance on its face. In Williamson, the plaintiff landowner alleged that a local planning commission’s rejection of its development plat under local regulations was a Fifth Amendment Taking without just compensation because the decision denied the plaintiff all economically viable uses of its property. 473 U.S. at 177-82, 185, 105 S.Ct. 3108. In contrast here, appellants do not challenge any particular decision of the Township or Planning Board applying the Ordinance to their property; instead, they allege that the mere enactment of the Ordinance has denied them all economically viable use of their property, i.e., a facial attack on the Ordinance. Thus, their facial Fifth Amendment Just Compensation Takings claim need not comply with the finality rule. See Suitum v. Tahoe Regí Planning Agency, 520 U.S. 725, 736 & 736 n. 10, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997) (“[Fjacial challenges to regulation are generally ripe the moment the challenged regulation or ordinance is passed, but face an uphill battle, since it is difficult to demonstrate that mere enactment of a piece of legislation deprived [the owner] of economically viable use of [his] property.” (internal citations and quotations omitted)). The complaint also alleges that appel-lees’ “other actions,” in addition to the passage of the Ordinance, violated the Takings Clause. The District Court only addressed the Takings allegations with regard to a facial attack on the Ordinance, and this has not been challenged by appellants. Any argument they might make at this point has been waived. b. Substantive Due Process Claims The Fourteenth Amendment provides that no State" }, { "docid": "21936376", "title": "", "text": "her or its] property or ... does not substantially advance legitimate State interests.” Manocherian v. Lenox Hill Hosp., 84 N.Y.2d 385, 618 N.Y.S.2d 857, 643 N.E.2d 479 (1994) (internal quotation marks and citations omitted). In Manocherian, the New York State Court of Appeals observed that, “[w]hile the typical taking occurs when the govern ment acts to physically intrude upon private property, government regulations which limit owners’ rights to possess, use or dispose of property may also amount to a ‘taking’ of the affected property.” Id. In the case at hand, despite this “reasonable, certain and adequate” provision for obtaining compensation from the State, plaintiff has not alleged any efforts to seek compensation in the courts of New York for the alleged regulatory taking of its property. For this additional reason, the Court finds that plaintiffs takings, due process, equal protection and substantive due process claim based on a regulatory taking are not ripe for adjudication. See Livant v. Clifton, 334 F.Supp.2d 321, 326 (E.D.N.Y.2004) (holding plaintiffs failure to seek just compensation through New York State “remedies first prohibit[ed] his takings claim on the grounds of ripeness”); see also Vandor Inc. v. Militello, 301 F.3d 37 (2d Cir.2002) (dismissing on ripeness grounds a takings claim due to plaintiffs failure to first seek compensation via an Article 78 proceeding); Allocco Recycling Ltd., v. Doherty, 378 F.Supp.2d 348, 361 (S.D.N.Y.2005) (“New York does provide a means for obtaining compensation for regulatory takings that plaintiff must first pursue under Williamson ”). In summary, because plaintiff has not alleged facts sufficient to permit the Court to conclude that plaintiff satisfied the final decision prong of Williamson ripeness test and has not sought relief from the State pursuant to the second prong of the Williamson test or presented a proper claim of futility, this Court concludes that plaintiffs First, Second and Fourth claims for relief are not ripe for review. As such, the Court cannot exercise subject matter jurisdiction over these claims. Accordingly, this Court respectfully reports and recommends that the Court grant defendants’ motion for judgment on the pleadings with respect to these claims and" }, { "docid": "17254609", "title": "", "text": "alteration omitted). We therefore address whether Beaulieu’s claim is ripe for review. Article III of the Constitution limits the jurisdiction of the federal courts to actual cases or controversies and requires us to consider whether a plaintiffs claims are ripe. U.S. Const. Art. III, § 2, cl. 1; Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 2030, 155 L.Ed.2d 1017 (2003) (“The ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction .... ”); see also Konikov v. Orange County, Fla., 410 F.3d 1317, 1322 (11th Cir.2005). The ripeness doctrine keeps federal courts from deciding cases prematurely. Digital Props., 121 F.3d at 589. It “protects federal courts from engaging in speculation or wasting their resources through the review of potential or abstract disputes.” Id.; see also Konikov, 410 F.3d at 1322 (“The purpose of this doctrine is to avoid entangling ourselves in abstract disagreements, and also to shield agencies from judicial interaction until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.”) (alteration and internal quotation marks omitted). “Courts must resolve whether the claim is sufficiently mature, and the issues sufficiently defined and concrete, to permit effective decisionmaking by the court.” Digital Props., 121 F.3d at 589 (internal quotation marks omitted). To determine whether a claim is ripe we must evaluate: (1) “the fitness of the issues for judicial decision”; and (2) “the hardship to the parties of withholding court consideration.” Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1315 (11th Cir.2000) (internal quotation marks omitted). In applying the fitness and hardship prongs we must consider the following factors: “(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 1670, 140 L.Ed.2d 921 (1998); see also Ala." }, { "docid": "19042004", "title": "", "text": "takings claim,” Kurtz, 758 F.3d at 515, a “substantive due process claim premised on arbitrary and capricious government conduct” — such as the substantive due process claim at issue here — “is subject to only the final decision prong of the Williamson ripeness test.” Southview Assocs., 980 F.2d at 96-97. “The requirement that a plaintiff .seek compensation in state court is ... derived from the Takings Clause, to which a substantive due process claim, premised on arbitrary and capricious government conduct, is largely unrelated.” Id. at 97 (internal citations omitted). A. Final Decision “A final decision is ‘a definitive position on the issue that inflicts an actual, concrete injury.’” R-Goshen LLC v. Vill. of Goshen, 289 F.Supp.2d 441, 448 (S.D.N.Y.2003) (quoting Williamson, 473 U.S. at 193, 105 S.Ct. 3108). “In a land use development context, a final decision requires that ‘a development plan must be submitted, considered and rejected by the governmental entity. Even when the plaintiff applies for approval of'a subdivision plan and is rejected, a claim is not ripe until plaintiff also seeks variances that would allow it to develop the property.’” Osborne v. Fernandez, No. 06-cv-4127 (CS) (LMS), 2009 WL 884697, at *5 (S.D.N.Y. Mar. 81, 2009) aff'd, 414 Fed.Appx. 350 (2d Cir.2011) (quoting Country View Estates @ Ridge, LLC v. Town of Brookhaven, 452 F.Supp.2d 142, 149 (E.D.N.Y.2006) (internal quotation marks omitted)). ‘“The rationale behind the finality requirement is that a court cannot demonstrate whether a Plaintiff has been deprived of property arbitrarily or otherwise, until it has a final definitive position before it on how the administrative agency will apply the regulation at issue to the particular land in question.’” Roman Catholic Diocese of Rockville Centre, New York v. Incorporated Vill. of Old Westbury, No. 09-cv-5195 (DRH) (ETB), 2011 WL 666252, at *17 (E.D.N.Y. Feb. 14, 2011) (quoting R-Goshen LLC, 289 F.Supp.2d at 448). The Second Circuit appears to have recognized a “futility” exception to.the final decision requirement if a plaintiff can demonstrate the following: (1) “the inevitability of refusal of their application,” Osborne v. Fernandez, No. 06-cv-4127 (CS) (LMS), 2009 WL 884697, at *5" }, { "docid": "9649416", "title": "", "text": "on the federal claims. The court dismissed Plaintiffs’ remaining state law claims with leave to refile in state court. STANDARD OF REVIEW Athough the parties did not raise the issue of subject matter jurisdiction, “we have an independent obligation to inquire into our own jurisdiction.” Perez-Martin v. Ashcroft, 394 F.3d 752, 756 (9th Cir.2005). The existence of jurisdiction is a question of law that we review de novo. Id. DISCUSSION The federal courts are limited to deciding “cases” and “controversies.” U.S. Const, art. Ill, § 2. Two components of the Article III case or controversy requirement are standing and ripeness. Colwell v. Dep’t of Health & Human Servs., 558 F.3d 1112, 1121 (9th Cir.2009). These concepts are “closely related.” Id. at 1123. To have standing, a plaintiff must have suffered an injury in fact that is “concrete and particularized;” that can be fairly traced to the defendant’s action; and that can be redressed by a favorable decision of the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “While standing is primarily concerned with who is a proper party to litigate a particular matter, ripeness addresses when litigation may occur.” Lee v. Oregon, 107 F.3d 1382, 1387 (9th Cir.1997). “[I]n many cases, ripeness coincides squarely with standing’s injury in fact prong.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir.2000) (en banc). The ripeness inquiry in some cases may therefore “be characterized as standing on a timeline.” Id. For example, “[a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (internal quotation marks omitted)). That is so because, if the contingent events do not occur, the plaintiff likely will not have suffered an injury that is concrete and particularized enough to establish the first element of standing. See" }, { "docid": "7306680", "title": "", "text": "1547, 194 L.Ed.2d 635 (2016); Hollingsworth v. Perry, — U.S. -, 133 S.Ct. 2652, 2661,186 L.Ed.2d 768 (2013) (explaining that Article III discusses the powers granted to the Judicial Branch and, inter aha, “confines the judicial power of federal courts to deciding actual ‘Cases’ or ‘Controversies’ ” (quoting U.S. Const, art. Ill, § 2)). “[T]he irreducible constitutional minimum of standing” consists of “three elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An appellant “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the [appellee], (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S.Ct. at 1547 (citations omitted). As to the first element, “the injury-in-fact requirement requires [an appellant] to allege an injury that is both concrete and particularized.” Id. at 1545 (internal quotation marks and citation omitted). To constitute a “concrete” injury, the harm must “actually exist,” id. at 1548 (citation omitted), or appear “imminent,” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks and citation omitted)—a “conjectural or hypothetical” injury will not suffice, id. (internal quotation marks and citation omitted). And an injury is “particularized” if it affects an appellant “in a personal and individual way.” Spokeo, 136 S.Ct. at 1548 (internal quotation marks and citation omitted). “[Although Article III standing is not necessarily a requirement to appear before an administrative agency,” Consumer Watchdog v. Wis. Alumni Research Found., 753 F.3d 1258, 1261 (Fed. Cir. 2014) (citation omitted), an appellant must nevertheless supply the requisite proof of an injury in fact when it seeks review of an agency’s final action in a federal court, see Massachusetts, 549 U.S. at 517, 127 S.Ct. 1488 (explaining that, when a party appeals from a final agency action, it must demonstrate that it suffers an injury “that is either actual or imminent” (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130)). Indeed, the Supreme Court has recognized that not every party will have Article III standing in an appeal from a PTAB final written decision. See Cuozzo" }, { "docid": "21936355", "title": "", "text": "has been extended to equal protection and due process challenges to zoning decisions); Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 96-97 (2d Cir.1992) (applying ripeness requirement to substantive due process claims); see also Kittay, 112 F.Supp.2d at 349 & n. 5. Inasmuch as plaintiffs takings, due process and equal protection claims, (see Compl., First, Second and Fourth Claims for Relief), arise out of the same factual events, namely defendants’ alleged actions in failing to act on plaintiffs site application, including defendants’ alleged failure to notify plaintiff of Section 85-79 of the Town Code and defendants’ alleged selective enforcement of this Section, the Court will apply the same ripeness inquiry to plaintiffs takings, due process and equal protection claims. See Dougherty, 282 F.3d at 88-89, 92 n. 7; Goldfine v. Kelly, 80 F.Supp.2d 153, 158-59 (S.D.N.Y.2000); Kittay, 112 F.Supp.2d at 349 & n. 5. (a) Final Decision Requirement A “final decision” is a “definitive position on the issue that inflicts an actual, concrete injury.” Williamson, 473 U.S. at 193, 105 S.Ct. 3108, 87 L.Ed.2d 126; see San Remo Hotel, L.P. v. City and County of San Francisco, Cal., 545 U.S. 323, 125 S.Ct. 2491, 2506, 162 L.Ed.2d 315 (2005) (holding “a claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue”) (internal quotation marks and citation omitted). For example, “[i]n order to have a final decision, a development plan must be submitted, considered and rejected by the governmental entity. Even when the plaintiff applies for approval of a subdivision plan and is rejected, a claim is not ripe until plaintiff also seeks variances that would allow it to develop the property.” Goldfine, 80 F.Supp.2d at 159 (internal quotation marks and citations omitted). “The rationale behind the finality requirement is that a court cannot determine whether a Plaintiff has been deprived of property arbitrarily or otherwise, until it has a final definitive position before it on how the administrative" }, { "docid": "8042437", "title": "", "text": "argues, and the district court found, that Williamson requires a plaintiff to avail himself of state procedures for obtaining compensation, or to demonstrate that those procedures are inadequate, prior to bringing an action under § 1983, and that the Kruses’ claims are not ripe because they did not pursue a state-law cause of action for inverse condemnation. We think, however, that Williamson does not require this result in the case at hand. The issue in Williamson on which the Supreme Court granted certiorari was “whether Federal, State, and Local governments must pay money damages to a landowner whose property allegedly has been ‘taken’ temporarily by the application of government regulations.” 473 U.S. at 185, 105 S.Ct. at 3115. The Court ultimately held that the property owner’s 42 U.S.C. § 1983 action was not ripe because the property owner had neither obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to the property nor utilized the procedures Tennessee provides for obtaining just compensation. As to the first ground, the Court explained, Our reluctance to examine taking claims until such a final decision has been made is compelled by the very nature of the inquiry required by the Just Compensation Clause.... [Tjhis Court consistently has indicated that among the factors of particular significance in the inquiry are the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations. Those factors simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question. Id. at 190-91, 105 S.Ct. at 3118-19 (internal citations omitted) (emphasis added). Second, the Court held that because the Takings Clause of the Fifth Amendment does not require pretaking compensation, so long as the state has, at the time of the taking, “a reasonable, certain and adequate provision for obtaining compensation,” id. at 194, 105 S.Ct. at 3120 (internal quotation marks omitted) (quoting Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 124-25, 95 S.Ct. 335, 349, 42 L.Ed.2d 320" }, { "docid": "23282885", "title": "", "text": "amendment of the 1979 Ordinance that alters its effect on mobilehome park owners. B The district court dismissed Colony Cove’s as applied takings claim (Claim 4) as unripe. Colony Cove maintains that it may pursue that claim in federal court, even though it has not sought compensation through state procedures as required by Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), both because the California procedure for compensating takings plaintiffs through prospective rent increases is inadequate on the facts of this case, given the magnitude of the taking, and because the requirement that state procedures should be invoked is merely prudential. The Fifth Amendment does not “require that just compensation for a taking be paid in advance of, or contemporaneously with, the taking; all that is required is that a reasonable, certain and adequate provision for obtaining compensation exist at the time of the taking.” Williamson, 473 U.S. at 194, 105 S.Ct. 3108 (citation and internal quotation marks omitted). “[T]here is no constitutional injury until the plaintiff has availed himself of the state’s procedures for obtaining compensation for the injury, and been denied compensation.” San Remo Hotel v. City and Cnty. of San Francisco, 145 F.3d 1095, 1102 (9th Cir.1998). An as applied takings claim must satisfy both prongs of the test set out in Williamson. Id. at 1101-02. First, a plaintiff must demonstrate that “the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” Williamson, 473 U.S. at 186, 105 S.Ct. 3108. Second, the plaintiff must have sought, and been denied, “compensation through the procedures the State has provided for doing so.” Id. at 194, 105 S.Ct. 3108. The state procedure a plaintiff asserting an as applied challenge to a rent control ordinance must pursue includes a “Kavanau adjustment,” which involves filing a writ of mandamus in state court and, if the writ is granted, seeking an adjustment of future rents from the local rent control board. Kavanau v. Santa Monica Rent" }, { "docid": "13493012", "title": "", "text": "show that she has standing to invoke federal jurisdiction, and that her claims are ripe. See David v. Alphin, 704 F.3d 327, 333 (4th Cir.2013); Miller v. Brown, 462 F.3d 312, 319 (4th Cir.2006). I fully agree with the majority opinion’s analysis that Doe has not met her burden in either respect. While the nature of the injury that Doe asserts is something of a moving target, the question whether she suffers from any injury at all depends on the manner in which Section 18.2-370.5 applies to the facts and circumstances of her case. The record in this regard is materially deficient. Because Doe has not sought relief from a Virginia circuit court and the local school board, we have no way of knowing whether Doe ultimately will obtain unconditional access to her children’s school, whether Doe will be granted access subject to certain conditions, or whether she will be allowed any access at all. We cannot conclude that Doe suffers a “concrete and particularized” injury necessary to show standing when her asserted injury may never materialize. See Alphin, 704 F.3d at 333 (citation omitted). Similarly, due to her failure to seek relief provided by Virginia law, the controversy lacks finality and remains “dependent on future uncertainties” and, therefore, is not ripe. See Miller, 462 F.3d at 319. Doe’s claims “rest[ ] upon contingent future events that may not occur as anticipated, or indeed may not occur at all,” namely, whether she will be denied access to school property. See Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (citation omitted). Accordingly, Doe has not met her burden of demonstrating standing and ripeness. Nor can we ignore the manner in which Doe has chosen to plead her ease and her decision to raise as-applied, rather than facial, challenges. See Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir.2009) (“Because the question of ripeness depends on the timing of the adjudication of a particular issue, it applies differently to facial and as-applied challenges.”) (citation omitted). An as-applied challenge attacks the constitutionality of" }, { "docid": "10672152", "title": "", "text": "conceded at the hearing that this issue is not ripe, see Hearing Tr. at 24:1-6, and indeed it is not. Article III of the United States Constitution limits the jurisdiction of the federal courts to resolving “Cases” and “Controversies,” U.S. Const, art. Ill, § 2, cl. 1, and “ ‘does not allow a litigant to pursue a cause of action to recover for an injury that is not “certainly impending.” ’ ” Full Value Advisors, LLC v. SEC, 633 F.3d 1101, 1106 (D.C.Cir.2011) (quoting Wyoming Outdoor Council v. U.S. Forest Service, 165 F.3d 43, 48 (D.C.Cir.1999) (internal quotation omitted)). The doctrine of ripeness exists to ensure compliance with Article III and “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). “In order to determine whether a controversy is ripe, a court must ‘evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’ ” Pfizer, Inc. v. Shalala, 182 F.3d 975, 978 (D.C.Cir. 1999) (quoting Texas v. United States, 523 U.S. 296, 301, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998)). In terms of fitness, a claim “ ‘is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” Id. (quoting Texas, 523 U.S. at 300, 118 S.Ct. 1257). In other words, the “‘fitness’ prong of the analysis generally addresses ‘whether the issue is purely legal, whether consideration of the issue would benefit from a more concrete setting, and whether the agency’s action is sufficiently final.’ ” Teva Pharmaceuticals USA, Inc. v. Sebelius, 595 F.3d 1303, 1308 (D.C.Cir.2010) (quoting National Ass’n of Home Builders v. U.S. Army Corps of Engineers, 440 F.3d 459, 463 (D.C.Cir. 2006)). Here Plaintiffs’ claim is wholly contingent upon a hypothetical future event: NPS’s making a decision to invoke § 1.5, close all or a" }, { "docid": "23508200", "title": "", "text": "a temporary taking by periodic invasion. This too is a garden variety takings claim clearly subject to the ripeness requirements of Williamson, See Biddison, 921 F.2d at 728-29; Himelstein, 898 F.2d at 576. C. The Satisfaction of Williamson’s Requirements Having concluded that Williamson is applicable to the Forseths’ federal substantive due process and takings claims, we must examine whether these claims satisfy the ripeness standard. As previously discussed, before a federal court may adjudicate land-use disputes, Williamson mandates the satisfaction of two requirements: (1) the “Final Decision Requirement”: the plaintiff must demonstrate that he or she received a “final decision” from the relevant government entity, 473 U.S. at 186-87, 105 S.Ct. 3108; see also Unity Ventures, 841 F.2d at 774; and (2) the “Exhaustion Requirement”: the plaintiff must have sought “compensation through the procedures the State has provided for doing so.” Williamson, 473 U.S. at 194, 105 S.Ct. 3108; see also Hager, 84 F.3d at 869. Because the policies underlying the exhaustion requirement often overlap with, but are distinct from those underlying the finality requirement, see Williamson, 473 U.S. at 193-94, 105 S.Ct. 3108 we address the exhaustion prong first. The Supreme Court has explained that the exhaustion requirement “stems from the Fifth Amendment’s proviso that only takings without ‘just compensation’ infringe that Amendment.” Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 734, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997). After all, “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” Id. (citation and quotation omitted); see also Williamson, 473 U.S. at 194 n. 13, 105 S.Ct. 3108 (“[B]ecause the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied. The nature of the constitutional right therefore requires that a property owner utilize procedures for obtaining compensation before bringing a § 1983 action.”) (emphasis in original); Gamble, 5 F.3d at 286 (“[U]ntil he exhausts his remedies for obtaining a compensation award or equivalent relief from the state" }, { "docid": "14256339", "title": "", "text": "Witt has standing to pursue this action. “[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations, footnote, and quotation marks omitted). Second, plaintiff must present a “causal connection be tween the injury and the conduct complained of — the injury has to be fairly ... traceable to the challenged action of the defendant, and not ... the result of the independent action of some third party not before the court.” Id. (internal quotation marks and brackets omitted). Finally, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” Id. at 561, 112 S.Ct. 2130. There is little doubt that Major Witt meets the second and third requirements, if she can meet the first requirement — an actual injury from DADT. There are, however, questions about whether she has suffered an actual injury for Article III purposes. Although Major Witt has been suspended, the military board recommended her discharge, and the Secretary of the Air Force ordered her discharge, she has not been formally discharged from the military, as far as the record before us shows. Accordingly, at least some of Major Witt’s claims are unripe because they rely on harms which may or may not actually occur. See Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (“A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” (internal quotation marks omitted)) We conclude that Major Witt meets the Article III requirements for her substantive due process and equal protection claims. Although she has not been discharged formally, Major Witt suffered a cognizable injury on account of her long-term suspension. In addition to the loss of" }, { "docid": "19888249", "title": "", "text": "until such time as a dispute is sufficiently concrete to satisfy the constitutional and prudential requirements of the doctrine.” Khodara Envtl., Inc. v. Blakey, 376 F.3d 187, 196 (3d Cir.2004) (quotations and citation omitted). “The doctrine seeks to avoid entangling courts in the hazards of premature adjudication.” Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 535 (3d Cir.1988). In their Rule 12 motion, the defendants argue that each of the constitutional claims (Counts One through Six) should be dismissed because the counts are not ripe for adjudication. In their view, the six counts mischaracterize local zoning issues as constitutional violations. The defendants rely on several Third Circuit opinions for. the proposition that “in cases involving land-use decisions, a property owner does not have a ripe constitutional claim until the zoning authorities have had an opportunity to arrive at a final, definitive position regarding how they will apply the regulations at issue to the particular land in question.” Sameric Corp. of DE v. City of Philadelphia, 142 F.3d 582 (3d Cir.1998). See also Acierno v. Mitchell, 6 F.3d 970, 974-75 (3d Cir.1993); Taylor Investment, Ltd. v. Upper Darby Twp., 983 F.2d 1285 (3d Cir.1993). Under this “finality rule,” a plaintiff property owner must prove that a “final decision has been reached by the agency before it may seek compensatory or injunctive relief in federal court on federal constitutional grounds.” Acierno, 6 F.3d at 975. The finality rule has been applied to constitutional claims founded on due process and equal protection violations. Cornell responds to the defendants’ arguments by citing to the recent Third Circuit opinion of County Concrete Corporation v. Twp. of Roxbury, 442 F.3d 159 (3d Cir.2006). In its view, its complaint contains ripe constitutional claims for this court’s consideration and none of the claims fall under the finality rule. a. Substantive Due Process The Fourteenth Amendment of the Constitution provides that no state shall “deprive any person of life, liberty, or property without due process of law.” U.S. Const, amend. XIV. “ ‘To prevail on a substantive due process claim, a plaintiff must demonstrate that an arbitrary and" }, { "docid": "61124", "title": "", "text": "jurisdiction. See Coalition for Sustainable Res., Inc. v. United States Forest Serv., 259 F.3d 1244, 1249 (10th Cir.2001) (“Application of the ripeness doctrine ... remains a confused mix of principle and pragmatic judgment reflecting its mixture of article III case and controversy requirements with prudential restraints on the exercise of jurisdiction.”) (internal quotation marks omitted). Consequently, should this court find this case to meet the constitutional standard for ripeness, prudential considerations may require us to stay our hand until the issues in this case have become more fully developed. Determining whether the issues presented by this case are ripe for review “requires] us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Application of the fitness standard requires us to ask “whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all.” New Mexicans for Bill Richardson, 64 F.3d at 1499 (internal quotation marks omitted). Likewise, the hardship inquiry may be answered by asking “whether the challenged action creates a direct and immediate dilemma for the parties.” Id. (internal quotations marks omitted). Our answers to these tandem inquiries convince us that this case is not ripe for review. . Instructive on the ripeness issue is this court’s decision in Keyes v. School District No. 1, Denver, Colorado, 119 F.3d 1437 (1997). In Keyes, appellants sought a declaration that the Busing Clause of the Colorado Constitution conflicted with the Equal Protection Clause of the Fourteenth Amendment and was thus unconstitutional. Finding the issue not ripe, the court explained that “[ajppellants ... make no effort to establish that any particular school desires to implement voluntary integration plans, let alone that any school has been deterred by the Busing Clause from implementing such a plan.... This court may not speculate about future conflict between the Busing" }, { "docid": "21936353", "title": "", "text": "Auth., 333 F.3d 74, 79 (2d Cir.2003). However, “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir.2002) (internal quotation marks and citation omitted). (1) Ripeness Under Article III of the Constitution, “courts have long recognized that the controversy, as an initial matter, must be ripe.” Kittay v. Giuliani, 112 F.Supp.2d 342 (S.D.N.Y.2000). “In the area of land use, the doctrine of ripeness is intended to avoid premature adjudication of administrative action.” Sunrise Development, Inc. v. Town of Huntington, 62 F.Supp.2d 762, 770 (E.D.N.Y.1999) (internal quotation marks and citation omitted); see Woodfield Equities, LLC v. The Incorporated Village of Patchogue, 357 F.Supp.2d 622, 632 (E.D.N.Y.) (“The ripeness doctrine’s basic rationale is to prevent the courts through avoidance of premature adjudication from entangling themselves in abstract disagreements.”) (internal quotation marks and citation omitted), aff'd 156 Fed.Appx. 389 (2d Cir.2005). In Williamson County Reg’l Planning Comm’n v. Hamilton Bank, the Supreme Court established a two pronged test for courts to consider in assessing the ripeness of a Fifth Amendment regulatory taking of a property interest claim. 473 U.S. 172, 186, 194-95, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). The first prong requires a finding that the state regulatory “entity charged with implementing the regulations has reached a final decision.” Id. at 186, 193-94, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126. The second prong requires a finding that plaintiff has sought just compensation by means of “reasonable, certain and adequate” state procedures. Id. at 194-95, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126. See W.J.F. Realty Corp. v. The Town of Southampton, 351 F.Supp.2d 18, 21-22 (E.D.N.Y.2004). “The ripeness requirement of Williamson, although announced in a takings context, has been extended to equal protection and due process claims asserted in the context of land use challenges.” Dougherty v. Town of North Hempstead Board of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.2002); see Murphy v. New Milford Zoning Com’n, 402 F.3d 342, 349 (2d Cir.2005) (observing Williamson’s ripeness requirement" }, { "docid": "13492997", "title": "", "text": "for judicial decision when the issues are purely legal and when the action in controversy is final and not dependent on future uncertainties.” Miller, 462 F.3d at 319 (citations and internal quotation marks omitted). Like the re-dressability requirement for standing, ripeness doctrine prevents us from considering a controversy until it is presented in “clean-cut and concrete form.” Rescue Army v. Mun. Ct. of Los Angeles, 331 U.S. 549, 584, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947). As with standing, the party bringing the suit bears the burden of proving ripeness. See Miller, 462 F.3d at 319. Where an injury is contingent upon a decision to be made by a third party that has not yet acted, it is not ripe as the subject of decision in a federal court. See Franks v. Ross, 313 F.3d 184, 195 (4th Cir.2002) (where county and state agency had “interwoven involvement” in a permitting process, controversy was not ripe until the completion of the final step of the process); Charter Fed. Sav. Bank v. Office of Thrift Supervision, 976 F.2d 203, 208-09 (4th Cir.1992) (where an agency was required to make multiple decisions and take several actions before an injury could occur, the issues at hand were not ripe for judicial decision). Because Doe has yet to petition a Virginia circuit court for permission to enter school or church property, all of her constitutional claims except that arising from Flaherty’s alleged violation of her right to procedural due process are dependent on future uncertainties and thus not ripe for judicial decision. The hardship prong of our ripeness analysis is “measured by the immediacy of the threat and the burden imposed on the petitioner who would be compelled to act under threat of enforcement of the challenged law.” Charter Fed. Sav. Bank, 976 F.2d at 208-09. In considering the hardship to be balanced against the fitness of the issues for review, we may consider the cost to the plaintiff of delaying review. Miller, 462 F.3d at 319. While the Virginia law itself is harsh on Doe, requiring her to wait to bring this case to" } ]

[ { "docid": "21188733", "title": "", "text": "Every indication is to the contrary. Section 6873(a) reads: “(a) General Rule. — Any portion of a claim for taxes allowed in a receivership proceeding or any proceeding under the Bankruptcy Act which is unpaid shall be paid by the taxpayer upon notice and demand from the Secretary or his delegate after the termination of such proceeding.” Sections 6871-6873 present an integrated procedure designed to protect the Government’s interest in bankruptcy property. At the same time, the bankrupt taxpayer’s interest is also protected by the trustee and by the bankrupt himself. The merits of the deficiency can be fully aired in that bankruptcy proceeding. Because the tax liability survives the adjudication in bankruptcy, the bankrupt has standing to attack the proof of claim before the Referee and a right to appeal an adverse judgment as would an ordinary creditor under Chapter 6 of the Bankruptcy Act, 11 U.S.C. §§ 91-96. American Anthracite & Bituminous Coal Corp. v. Leonardo Arrivabene, S.A., 2 Cir. 1960, 280 F.2d 119; Menick v. Hoffman, 9 Cir. 1953, 205 F.2d 365; United States v. Walley, S.D.Cal. 1958, 160 F.Supp. 67, rev’d on other grounds, 9 Cir. 1958, 259 F.2d 579; 8 Remington on Bankruptcy § 3317, n. 11b. Section 17 of the Bankruptcy Act, providing for the non-dischargeability of Federal tax claims, “demonstrates congressional judgment that certain problems — e. g., those of financing government — override the value of giving the debtor a wholly fresh start.” Bruning v. United States, 1964, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772. This can indeed bring on harsh results. But the taxpayer cannot contend that the procedure of Sections 6871-6873 puts the bankrupt in a worse position to protect his exempt or after-acquired property than the non-bankrupt who has recourse to the Tax Court. Having failed to use his first opportunity to contest the deficiency, he must now pay the tax in accordance with Section 6873. See Treas. Reg. § 301.-6863-1. In a well reasoned opinion by Judge Hastie, Cohen v. Gross, 3 Cir. 1963, 316 F.2d 521, the Third Circuit has held that Sections 6871-6873 procedures" } ]

[ { "docid": "17606965", "title": "", "text": "Singleton, 428 U.S. 106, 96 S.Ct. 2868, gives them standing; (4) Franchise Tax Board of California v. Alcan Aluminium Ltd., 493 U.S. 331, 336, 110 S.Ct. 661, 107 L.Ed.2d 696 (1990), allows them to base their standing on Ba-dami’s bad faith; and (5) 11 U.S.C. § 1109(b) confers standing on them. a. Effect on Distributions Appellants contend the conversion order directly affects the Sears pecuniarily because (1) distributions to stockholders are made from different sources, at different times, and in different amounts under Chapters 7 and 11; (2) AFY’s estate would be solvent if this court reverses, in a separate appeal, the bankruptcy court’s decision allowing certain claims against AFY’s estate; and (3) “[w]here the debtor is solvent and there is a surplus for shareholders, the shareholders have standing to appeal from orders affecting the surplus.” Based on the rule that “shareholders [cannot] appeal a bankruptcy court decision where they assert[ ] only a derivative interest,” In re Troutman Enters., Inc., 286 F.3d at 365; accord In re Dein Host, Inc., 835 F.2d at 405-06, the District Court for the Northern District of Illinois held that the fact bankruptcy litigation could result in a surplus to a corporate debtor does not confer appellate standing on the corporation’s shareholders, explaining this surplus would belong to [the corporation] and not to [its] shareholders. [The corporation], through' its officers and directors, will decide whether to retain the capital or distribute it to shareholders. The shareholders themselves have no immediate right to the surplus. In re Cent. Ice Cream Co., 62 B.R. 357, 359-60 (N.D.Ill.1986) (internal citation omitted). We find this reasoning persuasive. We have held that a debtor may have standing to appeal from an order of the bankruptcy court in certain circumstances. See Kapp v. Naturelle, Inc., 611 F.2d 703, 707 (8th Cir.1979); see also In re El San Juan Hotel, 809 F.2d 151, 155 & n. 6 (1st Cir.1987) (noting that an exception to the “general rule ... that only the trustee has standing to appeal from a bankruptcy court order” is “if a successful appeal by the debtor would create" }, { "docid": "3105193", "title": "", "text": "F.2d at 155 n. 6; In re Goodwin’s Discount Furniture, Inc., 16 B.R. at 888. Sometimes described as “exceptions” to the general rule that Chapter 7 debtors lack standing, see In re El San Juan Hotel, 809 F.2d at 155 n. 6, they represent instances when Chapter 7 debtors are sufficiently aggrieved to maintain appeals of bankruptcy court orders. As to orders affecting the estate generally {e.g., objections to claims or dispositions of assets), if a successful appeal would create assets in excess of liabilities and, thus, result in a surplus distributable to the debtor under § 726(a)(6), the debtor may appeal. Second, a debtor may appeal those orders that determine or directly affect the debtor’s rights under the Code (e.g., orders shaping the discharge or affecting exemptions). See In re Weston, 18 F.3d at 863-64, 864 n. 3 (“Unless the estate is solvent and excess will eventually go to the debtor, or unless the matter involves rights unique to the debtor [ — ] [f]or example, discharge of debts or exemption of property from the estate [ — ] the debtor is not á party aggrieved by orders affecting the administration of the bankruptcy estate.”); accord El San Juan Hotel, 809 F.2d at 155 n. 6; Blue Mountain Invs., Ltd. v. Bone (In re Blue Mountain Invs., Ltd.), 186 B.R. 508, 512 (D.Kan.1995); In re Williams, 181 B.R. at 535; Troy Plastics, 129 B.R. at 475. Such orders directly affect a debtor’s pecuniary interests. Where the Kehoes Stand The Kehoes, complaining mightily how Schindler’s election makes all the difference to them between a fresh start and perpetual ruin, have advanced no specific arguments as to how Schindler’s trusteeship (as opposed to anyone else’s) directly and adversely affects them. The deficiency in their argument is understandable: the assertion is groundless. a. Potential for a surplus. General protests notwithstanding, Schindler’s election as trustee, in and of itself, has no direct bearing on the question whether the bankruptcy estate will realize sufficient value to generate a surplus distributable under § 726(a)(6). Thus, the Kehoes’ appeal obtains no purchase on this ground. See" }, { "docid": "3105191", "title": "", "text": "the order must “diminish the [Kehoes’] property, increase [their] burdens, or detrimentally affect [their] rights.” In re Fondiller, 707 F.2d at 442. Accord e.g., In re El San Juan Hotel, 809 F.2d at 154; In re Williams, 181 B.R. 532, 535 (D.Kan.1995); Troy Plastics, 129 B.R. at 474. Election of a trustee directly impacts the bankruptcy estate and, therefore, its beneficiaries. After all, the trustee is the estate’s representative. See § 323 (“The trustee in a case under this title is the representative of the estate.”); Edmonston v. Murphy (In re Edmonston), 107 F.3d 74, 76 (1st Cir.1997); see also; § 704 (describing duties of the trustee); In re Goodwin’s Discount Furniture, Inc., 16 B.R. at 887-88 (observing that the trustee, representing the unsecured creditors, has standing to appeal orders on claim allowance and disposing of estate property, not the “[h]opelessly insolvent” debtor). And, in the usual case, it is the creditors, not the debtors, who are the estate’s beneficiaries. Standing in a Chapter 7 Debtor’s Shoes For. present purposes, bankruptcy court orders may be divided into two broad categories: (1) orders that affect the estate and (2) orders that directly affect Chapter 7 debtors’ rights. Chapter 7 debtors “ordinarily” lack standing to challenge orders affecting the assets of the estate. In re El San Juan Hotel, 809 F.2d at 154-55. Accord In re Goodwin’s Discount Furniture, Inc., 16 B.R. at 887 (collecting cases); Troy Plastics, 129 B.R. at 475. This is so because under the Code their legal and equitable property interests pass to the bankruptcy estate and all prepetition creditors’ claims become estate liabilities. See § 541(a)(commencement of case “creates an estate”); § 502 (allowance of claims); In re El San Juan Hotel, 809 F.2d at 154 & n. 5 (debtor normally has no interest in the distribution of estate’s property); In re Goodwin’s Discount Furniture, Inc., 16 B.R. at 887 (same). Nevertheless, the law is well-settled that Chapter 7 debtors do have standing to appeal orders that directly affect their interests and, in limited circumstances, orders affecting the estate. See In re El San Juan Hotel, 809" }, { "docid": "6514394", "title": "", "text": "action where the trustee/debtor in possession refused to act and the creditors had a colorable claim. Accord In re Monsour Medical Center, 5 B.R. 715 (Bankr.W.D.Pa.1980). A landlord recovered his expenses, pursuant to § 506(c), in In re Isaac Cohen Clothing Corp., 39 B.R. 199 (Bankr.S.D.N.Y.1984). Finally, in In re T.P. Long Chemical, Inc., 45 B.R. 278 (N.D. Ohio 1985), the court permitted the Environmental Protection Agency (EPA) to bring a section 506(c) suit because it found that the EPA had assumed the trustee’s duty to remove hazardous waste. But see In re Fabian, 46 B.R. 139 (Bankr.E.D.Pa.1985) (reliance on In re Codesco); In re Codesco, Inc., 18 B.R. 225 (Bankr.S.D.N.Y.1982) (strict interpretation of § 506(c) permitting only trustee to recover). Based on the above cases, we hold that Equitable Gas has standing to recover. The rule that individual creditors cannot act in lieu of the trustee is often breached when sufficient reason exists to permit the breach. In this case, neither the debtor in possession nor a creditors committee had reason to make a claim on behalf of Equitable, when the debtor thereby would be required to pay for utilities it had received without charge following the date that its petition was filed. Thus, because Equitable Gas had a colorable claim for expenses and was the only creditor that would zealously pursue that claim, it has standing to bring a § 506(c) action. See In re Isaac Cohen Clothing Corp., 39 B.R. 199 (landlord was only creditor with reason to bring § 506(c) action). Appellee Equibank argues that even if Equitable Gas had standing, the fact that Equitable supplied gas did not benefit the secured creditors. Appellee relies on In re Flagstaff Food Service Corp., 762 F.2d 10 (2d Cir.1985), in which the court denied recovery for payment of payroll taxes. In that case, the court rejected the general assertion that payment of the taxes contributed to reorganization and increased the going concern value of the assets. Rather, the court required the debtor to “show that its funds were expended primarily for the benefit of the creditor and that" }, { "docid": "17606966", "title": "", "text": "the District Court for the Northern District of Illinois held that the fact bankruptcy litigation could result in a surplus to a corporate debtor does not confer appellate standing on the corporation’s shareholders, explaining this surplus would belong to [the corporation] and not to [its] shareholders. [The corporation], through' its officers and directors, will decide whether to retain the capital or distribute it to shareholders. The shareholders themselves have no immediate right to the surplus. In re Cent. Ice Cream Co., 62 B.R. 357, 359-60 (N.D.Ill.1986) (internal citation omitted). We find this reasoning persuasive. We have held that a debtor may have standing to appeal from an order of the bankruptcy court in certain circumstances. See Kapp v. Naturelle, Inc., 611 F.2d 703, 707 (8th Cir.1979); see also In re El San Juan Hotel, 809 F.2d 151, 155 & n. 6 (1st Cir.1987) (noting that an exception to the “general rule ... that only the trustee has standing to appeal from a bankruptcy court order” is “if a successful appeal by the debtor would create an estate that has assets in excess of liabilities”) (emphasis added). Because AFY is the debtor in this case, these cases do not suggest the Sears have standing to appeal the conversion order. The Ninth Circuit adopted a more expansive approach. Although In re International Environmental Dynamics, Inc., 718 F.2d 322, 326 (9th Cir.1983), includes broad language that “in a case involving competing claims to a limited fund, a claimant has standing to appeal an order disposing of assets from which the claim ant seeks to be paid,” the specific standing issue before that court was quite narrow. The Ninth Circuit held that a creditor (Creditor A) of the debtor could appeal the bankruptcy court’s order authorizing the debtor to reimburse other creditors for sums Creditor A claimed Creditor A “had in fact ... paid.” Id. at 323-24, 326. In doing so, the court distinguished a case in which a debtor did not have appellate standing, explaining Creditor A did “not claim standing as a surrogate for the [debtor], but instead allege[d] that it [was]" }, { "docid": "18800291", "title": "", "text": "will be reduced below what they otherwise would be by application of estate funds which would otherwise be applied to the debts at issue on this appeal. Cf. Abel v. Campbell, 334 F.2d 339, 341 (5th Cir.1964) (“Because the tax liability survives ... the bankruptcy, the bankrupt has standing to attack the proof of claim before the Referee and a right to appeal an adverse judgment as would an ordinary creditor”); Matter of Dooley, 41 B.R. 31, 33 (Bank.N.D.Ga.1984) (debtor has standing to object to claim); In re McCorhill Pub., Inc., 89 B.R. 393, 396 (Bank.S.D.N.Y.1988) (“a debtor has standing to object to claims where disallowance of the claims would produce a surplus”). We conclude that the case is not moot in the sense of no longer presenting a case or controversy. See also Cox v. Sunbelt Sav. Ass’n of Texas, 896 F.2d 957, 959-60 (5th Cir.1990); Triland Holdings & Co. v. Sunbelt Service Corp., 884 F.2d 205, 208 (5th Cir.1989); Ratner v. Sioux Natural Gas Corp., 770 F.2d 512, 516 (5th Cir.1985). We recognize, of course, that where a debtor is in bankruptcy a suit against the debtor for a post-petition debt must make the trustee a defendant. Bellini Imports v. Mason and Dixon Lines, Inc., 944 F.2d 199, 201-02 (4th Cir.1991). Suits against the debtor commenced before bankruptcy or on ' pre-petition claims are stayed by the automatic stay of 11 U.S.C. § 362(a). Here, however, there was no bankruptcy until after Gasper had perfected the instant appeal. Subsequently, the bankruptcy court, on motion of Gasper and plaintiffs, and with the approval of the Chapter 13 trustee, lifted the automatic stay for the specific purpose of allowing Gasper “to proceed with” this appeal “in order that the Fifth Circuit may decide and issue its opinion and judgment regarding the Debtor’s [Gasper’s] appeal.” The subsequent conversion to Chapter 7 did not invoke another automatic stay or modify this order. See In Re Parker, 154 B.R. 240, 243 (BankS.D.Ohio, W.D., 1993) (“the conversion of the debtors’ Chapter 7 case to Chapter 13 did not cause the stay to be reimposed" }, { "docid": "3105195", "title": "", "text": "In re El San Juan Hotel, 809 F.2d at 155 n. 6; In re Blue Mountain Invs., Ltd., 186 B.R. at 512; In re Williams, 181 B.R. at 535. Mere hope, however fervent, that Schindler’s ouster now would improve the Kehoes’ prospects down the road is insufficient to confer standing: “It is incumbent upon [the debtor] to show that the order appealed from would directly and adversely affect the possibility of residual assets being available to the [d]ebtor.” In re Goodwin’s Discount Furniture, Inc., 16 B.R. at 888. Simply stated, the connection between the Chapter 7 trustee’s identity and the possibility of a surplus is far too flimsy a platform to support standing. See In re Weston, 18 F.3d at 863-64 (asserted possibility of surplus did not confer standing for debtor’s appeal regarding Chapter 7 trustee election); Troy Plastics, 129 B.R. at 475 (dismissing argument that a successful appeal regarding identity of trustee could create surplus); also In re Williams, 181 B.R. at 535-36 (debtors’ conclusory allegation that the trustee’s litigation of two adversary proceedings to judgment would create a surplus was insufficient to confer standing to appeal order approving compromise). Certainly, Schindler’s actions, like any trustee’s, will be subject to scrutiny in the court below. If the Kehoes can show a direct connection between his actions and a distributable surplus they may be heard and would have standing to appeal an order that affects them adversely. Cf. e.g., In re Blue Mountain Invs., Ltd., 186 B.R. at 512 (debtor had standing to appeal adversary proceeding orders affecting title to real property where successful appeal would bring the property into the estate and could result in a surplus). b. Discharge and exemptions. The Kehoes have advanced, and we can discern, no way in which Schindler’s election impacts the rights of the Kehoes in their Chapter 7 case. There is no direct correlation between Schindler’s installation as trustee and the contour of the Kehoes’ discharge, compare Desmond v. Varrasso (In re Varrasso), 37 F.3d 760 (1st Cir.1994)(debtor’s appeal of an order denying discharge), or their exemption entitlements. Compare Petit v. Fessenden," }, { "docid": "15165619", "title": "", "text": "(quoting Fondiller v. Robertson (In re Fondiller), 707 F.2d 441, 443 (9th Cir.1983)); Cult Awareness Network, Inc. v. Martino, 151 F.3d 605, 607 (7th Cir.1998) (only persons affected pecuniarily by a bankruptcy order have standing to appeal that order). Kieffer no longer has any individual claim in the bankruptcy estate. Her claim was objected to by the Trustee and disallowed by the bankruptcy court. Her appeal from that disallowance has been dismissed. Thus, no assets of the estate can possibly go to Kieffer. Therefore, the distribution of estate assets does not pecuniarily affect Kieffer and she does not have standing in this matter. Merrifield, 214 B.R. at 365. See also In re Green, 133 B.R. 185, 186-87 (E.D.Va.1991) (holding that dismissal of a creditor’s claim precluded further standing in the case). Typically, a Debtor has no standing to object to claims or orders relating to them because the debtor does not have a pecuniary interest in the distribution of the assets of the estate. Kapp v. Naturelle, Inc., (In re Kapp), 611 F.2d 703, 706-07 (8th Cir.1979); Broady v. Miner (In re Broady), 96 B.R. 221, 223 (Bankr.E.D.Mo.1988) (citing Kapp). This is because an objection to a proposed distribution only affects how much each cred itor will receive and does not affect the debt- or’s rights. See Merrifield, 214 B.R. at 366; In re El San Juan Hotel, 809 F.2d 151, 154-55 (1st Cir.1987). The exception is where it appears that, if the contested claims are disallowed, there will be a surplus. Kapp, 611 F.2d at 707; see also McGuirl v. White, 86 F.3d 1232, 1234 (D.C.Cir.1996); San Juan Hotel, 809 F.2d at 155 n. 6. In this ease, this exception applies. The Trustee’s Final Report and Account reflects that $45,817.44 was available for payment to general unsecured creditors. Excluding Claim Number 7, which is the subject of this appeal, general unsecured claims totaled $8,243.64. Thus, if there is no distribution on Claim Number 7 and the other general unsecured creditors were paid in full, there would be a $37,573.80 surplus left to be returned to the Debtor. Because of" }, { "docid": "6514393", "title": "", "text": "101-02. We now turn to a discussion of appellant’s contentions. III. Section 506(c) of the Bankruptcy Code provides that: “The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” 11 U.S.C. § 506(c). The bankruptcy court’s decision to award payment to Equitable Gas was based primarily on this section. App. at 118-22. The district court found this section inapplicable for a number of reasons, including concern over Equitable’s standing to recover under § 506(c) and Equitable’s failure to benefit the secured creditors by continuing to provide gas service to the debtor. App. at 273-83. The district court’s conclusions, however, are incorrect. A number of courts have held that parties other than the trustee have standing to recover under provisions stipulating that only the trustee may act. In In re Philadelphia Light Supply Co., 39 B.R. 51 (Bankr.E.D.Pa.1984), the court permitted the creditors committee to bring a section 547 preference action where the trustee/debtor in possession refused to act and the creditors had a colorable claim. Accord In re Monsour Medical Center, 5 B.R. 715 (Bankr.W.D.Pa.1980). A landlord recovered his expenses, pursuant to § 506(c), in In re Isaac Cohen Clothing Corp., 39 B.R. 199 (Bankr.S.D.N.Y.1984). Finally, in In re T.P. Long Chemical, Inc., 45 B.R. 278 (N.D. Ohio 1985), the court permitted the Environmental Protection Agency (EPA) to bring a section 506(c) suit because it found that the EPA had assumed the trustee’s duty to remove hazardous waste. But see In re Fabian, 46 B.R. 139 (Bankr.E.D.Pa.1985) (reliance on In re Codesco); In re Codesco, Inc., 18 B.R. 225 (Bankr.S.D.N.Y.1982) (strict interpretation of § 506(c) permitting only trustee to recover). Based on the above cases, we hold that Equitable Gas has standing to recover. The rule that individual creditors cannot act in lieu of the trustee is often breached when sufficient reason exists to permit the breach. In this case, neither the debtor in possession nor a creditors committee had reason to make a" }, { "docid": "3009780", "title": "", "text": "F.2d 627, 628 (9th Cir.), cert. denied sub nom. McColgan v. Clark, 269 U.S. 556, 46 S.Ct. 19, 70 L.Ed. 409 (1925) (third party transferee of estate property appealed reopening to administer assets). The same reasoning wal also applied to a party in interest — a former trustee — who was a potential defendant in a creditor’s suit. The First Circuit held that the trustee could not appeal an order granting the creditor leave to sue. Notwithstanding that the former trustee did have an interest in defending himself against liability, the First Circuit held that the order did not “prevent [him] from doing just that, or from asserting any claim or defense he may have.” In re El San Juan Hotel, 809 F.2d 151, 155 (1st Cir.1987). Initially, the instant appeal appears to be distinguishable from Menk because here the debtors themselves are the potential defendants. The debtor in Menk had already defended the adversary action, and merely sought to undo that judgment by appealing the underlying order reopening the case. The debtor in Menk lacked standing because a reversal would not affect the judgment of nondischargeability that he did not appeal. See Menk, 241 B.R. at 918 (concurring op.). The practical effect of the instant motion, however, was to reopen the case to allow the creditors to file the requisite adversary proceeding. By analogy to the foregoing case law, such an order, allowing the creditors to file an adversary proceeding, only potentially affected the debtors’ rights. The debtors have yet to litigate the dischargeability of their debt to the creditors. The omitted creditors do not presently have a claim against the no-asset estate. And, like the trustee in El San Juan Hotel, the debtors’ personal liability for the debt is not affected by the reopening, which is simply a mechanical device, with no independent significance. Menk, 241 B.R. at 913; Abbott, 183 B.R. at 200. Therefore, we hold that the debtors do not have standing to appeal that portion of the order which simply granted the creditors leave to file a nondisehargeability proceeding because that order did not adversely" }, { "docid": "3105196", "title": "", "text": "to judgment would create a surplus was insufficient to confer standing to appeal order approving compromise). Certainly, Schindler’s actions, like any trustee’s, will be subject to scrutiny in the court below. If the Kehoes can show a direct connection between his actions and a distributable surplus they may be heard and would have standing to appeal an order that affects them adversely. Cf. e.g., In re Blue Mountain Invs., Ltd., 186 B.R. at 512 (debtor had standing to appeal adversary proceeding orders affecting title to real property where successful appeal would bring the property into the estate and could result in a surplus). b. Discharge and exemptions. The Kehoes have advanced, and we can discern, no way in which Schindler’s election impacts the rights of the Kehoes in their Chapter 7 case. There is no direct correlation between Schindler’s installation as trustee and the contour of the Kehoes’ discharge, compare Desmond v. Varrasso (In re Varrasso), 37 F.3d 760 (1st Cir.1994)(debtor’s appeal of an order denying discharge), or their exemption entitlements. Compare Petit v. Fessenden, 80 F.3d 29 (1st Cir.1996); Mercer v. Monzack, 53 F.3d 1 (1st Cir.1995) (debtors’ appeals of orders denying exemption claims). The possibility that Schindler (as opposed to anyone else) might someday dispute the Kehoes’ exemption claims or object to their discharge does not confer standing upon them to challenge his election today. See In re El San Juan Hotel, 809 F.2d at 155 (“[A] debtor, contesting a bankruptcy court order, whose only interest or burden is as a future party defendant, does not qualify as an ‘aggrieved person.’ ”); accord In re Fondiller, 707 F.2d at 443. Thus, the Kehoes’ appeal is without footing on this basis, as well. See In re Weston, 18 F.3d at 863-64, 864 n. 3; El San Juan Hotel, 809 F.2d at 155 n. 6; In re Goodwin’s Discount Furniture, Inc., 16 B.R. at 888; In re Williams, 181 B.R. at 535; Troy Plastics, 129 B.R. at 475. Standing Back—A Broader View The Kehoes’ challenge to the trustee election is based on their assertion that two ineligible creditors voted for" }, { "docid": "18800290", "title": "", "text": "stating “I do not believe there is any reason to continue with the appeal” and “I believe the matter is more properly the subject of the claims objection process in the Bankruptcy Court.” We conclude that the appeal is not moot. Certainly it will affect what plaintiffs may recover from the bankruptcy estate. Assuming, as appears to be the assumption of the parties but has not been expressly stated or reflected by any of the material filed with us, that the liabilities of the estate exceed its assets, then what other unsecured creditors will receive will also be affected by this appeal. If the mentioned assumption is not accurate, or would not be accurate were Gas-per to prevail on all issues he raises on appeal, then the appeal will clearly affect what Gasper receives from the estate. Moreover, if plaintiffs prevail in their objection to dischargeability (or if any other creditors successfully object to the dischargeability of any debt), then Gasper will be affected because if he prevails on appeal the undischarged debt or debts will be reduced below what they otherwise would be by application of estate funds which would otherwise be applied to the debts at issue on this appeal. Cf. Abel v. Campbell, 334 F.2d 339, 341 (5th Cir.1964) (“Because the tax liability survives ... the bankruptcy, the bankrupt has standing to attack the proof of claim before the Referee and a right to appeal an adverse judgment as would an ordinary creditor”); Matter of Dooley, 41 B.R. 31, 33 (Bank.N.D.Ga.1984) (debtor has standing to object to claim); In re McCorhill Pub., Inc., 89 B.R. 393, 396 (Bank.S.D.N.Y.1988) (“a debtor has standing to object to claims where disallowance of the claims would produce a surplus”). We conclude that the case is not moot in the sense of no longer presenting a case or controversy. See also Cox v. Sunbelt Sav. Ass’n of Texas, 896 F.2d 957, 959-60 (5th Cir.1990); Triland Holdings & Co. v. Sunbelt Service Corp., 884 F.2d 205, 208 (5th Cir.1989); Ratner v. Sioux Natural Gas Corp., 770 F.2d 512, 516 (5th Cir.1985). We recognize," }, { "docid": "12230450", "title": "", "text": "Circuit explained in Kapp: [A party’s] interest must be a pecuniary interest in the estate to be distributed. Thus, since the bankrupt is normally insolvent, he is considered to have no interest in how his assets are distributed among his creditors and is held not to be a party in interest. However, when it appears that, if the contested claims are disallowed, there may be a surplus of assets to be returned to the bankrupt, the bankrupt is considered to have standing to contest the claims. Id. at 706-07 (citations omitted). Relying on Kapp and other “party in interest” cases, Willemain rejected the shareholder’s standing because the debtor had failed to demonstrate that an alternative sale of the property would make his estate solvent. Bankruptcy courts have applied Willemain’s “approach to standing, which [effectively] extends the applicability of section 502(a) ‘party in interest’ analysis outside the section 502(a) setting” to other contexts. In re F.A. Dellastatious, Inc., 121 B.R. 487, 490 (Bankr.E.D.Va.1990) (insolvent Chapter 7 debtor lacks standing to determine order in which bankruptcy court paid two debts owed to IRS). Willemain’s holding that only solvent debtors have standing in the bankruptcy court parallels a similar rule that limits standing to appeal bankruptcy court orders to a “person aggrieved.” Like the “party in interest” requirement, the “person aggrieved” standard derives from a former provision of the bankruptcy code. See 11 U.S.C. § 67(c) (1976) (repealed 1978). Persons aggrieved are those “whose rights or interests are ‘directly and adversely affected pecuniar-ily’ by the order or decree of the bankruptcy court.” In re El San Juan Hotel, 809 F.2d 151, 154 (1st Cir.1987) (quoting In Re Fondiller, 707 F.2d 441, 442 (9th Cir.1983)). Because estates pass on to a trustee in bankruptcy and because bankruptcy proceedings absolve debtors of any liability to creditors, debtors generally lack standing to appeal orders of the bankruptcy court. See San Juan Hotel, 809 F.2d at 154-55. Only debtors who will have a surplus in their estate after the termination of bankruptcy proceedings have appellate standing. See id. at 155 n. 6; see also Depoister v. Mary" }, { "docid": "18600449", "title": "", "text": "In re Cosmopolitan Aviation Corp., 763 F.2d 507, 513-14 (2d Cir.1985), cert. denied, sub nom. Rothman v. New York State Dept. of Trartsp., — U.S. -, 106 S.Ct. 593, 88 L.Ed.2d 573 (1985). Accord, 1 Collier on Bankruptcy, § 3.03[5] at 3-118 to -119 (15th ed. 1985). . Whether an appellant is a person aggrieved is generally considered a question of fact for the district court. In re E.C. Ernst, Inc., 2 B.R. 757, 760 (S.D.N.Y.1980). In the instant case, the district court did not consider the standing issue. Since the relevant facts and necessary evidence are clearly before us and not in dispute, we consider it proper to address the issue ourselves, as the Ninth Circuit did in In re Fondiller, supra, 707 F.2d 441. . See also Big Shanty Land Corp. v. Comer Properties, Inc., 61 B.R. 272, 277 (N.D.Ga.1985) (where debtor had entered into contract to sell sole asset to buyer, buyer had no standing to appeal bankruptcy court’s denial of debtor’s motion to sell asset). . In re Goodwin's Discount Furniture, Inc., supra, 16 B.R. at 887. See also, e.g., Imperial Bowl of Miami, Inc. v. Roemelmeyer, 368 F.2d 323 (5th Cir.1966); Hartman Corp. of America v. United States, 304 F.2d 429, 431 (8th Cir.1962); Skelton v. Clements, 408 F.2d 353 (9th Cir.), cert. denied, 394 U.S. 933, 89 S.Ct. 1202, 22 L.Ed.2d 462 (1969); Casterner v. Morel, 216 F.2d 189 (1st Cir.1954). . There are two exceptions to this general rule: 1) if a successful appeal by the debtor would create an estate that has assets in excess of liabilities, York Intern. Building, Inc. v. Chaney, 527 F.2d 1061 (9th Cir.1975), and 2) an appeal taken from orders that affect the terms, conditions and extent of a debtor’s discharge, Abel v. Campbell, 334 F.2d 339 (5th Cir.1964). . The Ninth Circuit made no distinction between whether it was the bankrupt or the wife who appealed; it appears that the bankrupt’s only interest would also have been as a party defendant and that the holding would have applied equally to him." }, { "docid": "3105197", "title": "", "text": "80 F.3d 29 (1st Cir.1996); Mercer v. Monzack, 53 F.3d 1 (1st Cir.1995) (debtors’ appeals of orders denying exemption claims). The possibility that Schindler (as opposed to anyone else) might someday dispute the Kehoes’ exemption claims or object to their discharge does not confer standing upon them to challenge his election today. See In re El San Juan Hotel, 809 F.2d at 155 (“[A] debtor, contesting a bankruptcy court order, whose only interest or burden is as a future party defendant, does not qualify as an ‘aggrieved person.’ ”); accord In re Fondiller, 707 F.2d at 443. Thus, the Kehoes’ appeal is without footing on this basis, as well. See In re Weston, 18 F.3d at 863-64, 864 n. 3; El San Juan Hotel, 809 F.2d at 155 n. 6; In re Goodwin’s Discount Furniture, Inc., 16 B.R. at 888; In re Williams, 181 B.R. at 535; Troy Plastics, 129 B.R. at 475. Standing Back—A Broader View The Kehoes’ challenge to the trustee election is based on their assertion that two ineligible creditors voted for Schindler at the § 341 meeting. See § 702(a)(setting eligibility requirements for creditors voting on permanent trustee). They argue that because the Meetinghouse and Nauss claims were disputed and, in addition, at least partially secured, their interests were “materially adverse” to the interests of unsecured creditors. Whether or not the points they make are accurate, this is simply not the Kehoes’ fight. Section 702(a)’s provisions operate to protect the estate’s creditors, not the debtors. See cf. In re Fondiller, 707 F.2d at 442 (order authorizing appointment of special counsel); In re Williams, 181 B.R. at 535 (order approving trustee’s compromise claim). Generally, our conclusion accords with the determinations of other courts that have considered issues regarding standing to appeal trustee elections. Compare Troy Plastics, 129 B.R. at 474-75 (debtors lack standing to appeal order confirming permanent trustee), with J.P. Morgan Inv. Management, Inc. v. United States Trustee (In re Martech USA Inc.), 188 B.R. 847, 850 (9th Cir. BAP 1995) (creditors attending the § 341 meeting and voting for trustee have standing to appeal order" }, { "docid": "3105189", "title": "", "text": "Trustee filed a report of contested election, with Schindler listed as the elected trustee. The bankruptcy court convened a hearing and, over the debtors’ objection, certified Schindler’s election. This appeal ensued. Standing Standard To defeat the appellee’s dismissal motion, the Kehoes must demonstrate that they have standing to appeal the bankruptcy court’s certification of Schindler’s election as trustee. They have appellate standing if they qualify as “persons aggrieved” by that order. In re El San Juan Hotel, 809 F.2d 151, 154 (1st Cir.1987). See accord Weston v. Mann (In re Weston), 18 F.3d 860, 863 (10th Cir.1994); Fondiller v. Robertson (In re Fondiller), 707 F.2d 441, 443 (9th Cir.1983); Norway Nat’l Bank v. Goodwin’s Discount Furniture, Inc. (In re Goodwin’s Discount Furniture, Inc.), 16 B.R. 885, 887 (1st Cir. BAP 1982); Troy Plastics v. North Hills II, L.P., 129 B.R. 473, 474 (E.D.Mich.1991). The rule limiting appellate standing to “persons aggrieved” by bankruptcy court orders springs from well established principles of judicial economy and the parties’ need for an orderly administration of each bankruptcy case. The First Circuit has observed: This rule of appellate standing is necessary to insure that bankruptcy proceedings are not unreasonably delayed by protracted litigation that does not serve the interests of either the [debtor’s] estate or its creditors. The nature of bankruptcy litigation, with its myriad of parties, directly and indirectly involved or affected by each order and decision of the bankruptcy court, mandates that the right of appellate review be limited to those persons whose interests are directly affected. In re El San Juan Hotel, Inc., 809 F.2d at 154. See also In re Goodwin’s Discount Furniture, Inc., 16 B.R. at 889. To qualify as “persons aggrieved,” the Kehoes must demonstrate that they were “directly and adversely affected pecuniarily” by the court’s order upholding the results of the § 341 trustee election. In re Fondiller, 707 F.2d at 442. See also e.g., Pignato v. Dein Host, Inc. (In re Dein Host, Inc.), 835 F.2d 402, 405 (1st Cir.1987); In re El San Juan Hotel, 809 F.2d at 154 (quoting In re Fondiller). That is," }, { "docid": "3105192", "title": "", "text": "divided into two broad categories: (1) orders that affect the estate and (2) orders that directly affect Chapter 7 debtors’ rights. Chapter 7 debtors “ordinarily” lack standing to challenge orders affecting the assets of the estate. In re El San Juan Hotel, 809 F.2d at 154-55. Accord In re Goodwin’s Discount Furniture, Inc., 16 B.R. at 887 (collecting cases); Troy Plastics, 129 B.R. at 475. This is so because under the Code their legal and equitable property interests pass to the bankruptcy estate and all prepetition creditors’ claims become estate liabilities. See § 541(a)(commencement of case “creates an estate”); § 502 (allowance of claims); In re El San Juan Hotel, 809 F.2d at 154 & n. 5 (debtor normally has no interest in the distribution of estate’s property); In re Goodwin’s Discount Furniture, Inc., 16 B.R. at 887 (same). Nevertheless, the law is well-settled that Chapter 7 debtors do have standing to appeal orders that directly affect their interests and, in limited circumstances, orders affecting the estate. See In re El San Juan Hotel, 809 F.2d at 155 n. 6; In re Goodwin’s Discount Furniture, Inc., 16 B.R. at 888. Sometimes described as “exceptions” to the general rule that Chapter 7 debtors lack standing, see In re El San Juan Hotel, 809 F.2d at 155 n. 6, they represent instances when Chapter 7 debtors are sufficiently aggrieved to maintain appeals of bankruptcy court orders. As to orders affecting the estate generally {e.g., objections to claims or dispositions of assets), if a successful appeal would create assets in excess of liabilities and, thus, result in a surplus distributable to the debtor under § 726(a)(6), the debtor may appeal. Second, a debtor may appeal those orders that determine or directly affect the debtor’s rights under the Code (e.g., orders shaping the discharge or affecting exemptions). See In re Weston, 18 F.3d at 863-64, 864 n. 3 (“Unless the estate is solvent and excess will eventually go to the debtor, or unless the matter involves rights unique to the debtor [ — ] [f]or example, discharge of debts or exemption of property from" }, { "docid": "12230451", "title": "", "text": "paid two debts owed to IRS). Willemain’s holding that only solvent debtors have standing in the bankruptcy court parallels a similar rule that limits standing to appeal bankruptcy court orders to a “person aggrieved.” Like the “party in interest” requirement, the “person aggrieved” standard derives from a former provision of the bankruptcy code. See 11 U.S.C. § 67(c) (1976) (repealed 1978). Persons aggrieved are those “whose rights or interests are ‘directly and adversely affected pecuniar-ily’ by the order or decree of the bankruptcy court.” In re El San Juan Hotel, 809 F.2d 151, 154 (1st Cir.1987) (quoting In Re Fondiller, 707 F.2d 441, 442 (9th Cir.1983)). Because estates pass on to a trustee in bankruptcy and because bankruptcy proceedings absolve debtors of any liability to creditors, debtors generally lack standing to appeal orders of the bankruptcy court. See San Juan Hotel, 809 F.2d at 154-55. Only debtors who will have a surplus in their estate after the termination of bankruptcy proceedings have appellate standing. See id. at 155 n. 6; see also Depoister v. Mary M. Holloway Found., 36 F.3d 582, 585 (7th Cir.1994). Even though the current version of the bankruptcy code no longer expressly limits appel late review to a “person aggrieved,” see Bankruptcy Act, Pub.L. 95-598, tit. I, § 101, 92 Stat. 2549 (1978), courts continue to so limit standing to appeal, recognizing that to do otherwise might overwhelm bankruptcy courts with claims by the many parties indirectly affected by bankruptcy court orders. See, e.g., Travelers Ins. Co. v. H.K. Porter Co., 45 F.3d 737, 741 (3rd Cir.1995); Fondiller, 707 F.2d at 443. Willemain thus simply applied well-established principles of bankruptcy standing, and the McGuirls do not quarrel with its central holding. Nor do the McGuirls deny that they are hopelessly insolvent: even if the bankruptcy court accepts their challenges and reduces the administrative fees, they will not have a surplus in their estate. They argue instead that they have standing because the court denied discharge of their debt. Their argument rests on two features of bankruptcy law. First, unlike typical cases in which debts are discharged," }, { "docid": "3105190", "title": "", "text": "The First Circuit has observed: This rule of appellate standing is necessary to insure that bankruptcy proceedings are not unreasonably delayed by protracted litigation that does not serve the interests of either the [debtor’s] estate or its creditors. The nature of bankruptcy litigation, with its myriad of parties, directly and indirectly involved or affected by each order and decision of the bankruptcy court, mandates that the right of appellate review be limited to those persons whose interests are directly affected. In re El San Juan Hotel, Inc., 809 F.2d at 154. See also In re Goodwin’s Discount Furniture, Inc., 16 B.R. at 889. To qualify as “persons aggrieved,” the Kehoes must demonstrate that they were “directly and adversely affected pecuniarily” by the court’s order upholding the results of the § 341 trustee election. In re Fondiller, 707 F.2d at 442. See also e.g., Pignato v. Dein Host, Inc. (In re Dein Host, Inc.), 835 F.2d 402, 405 (1st Cir.1987); In re El San Juan Hotel, 809 F.2d at 154 (quoting In re Fondiller). That is, the order must “diminish the [Kehoes’] property, increase [their] burdens, or detrimentally affect [their] rights.” In re Fondiller, 707 F.2d at 442. Accord e.g., In re El San Juan Hotel, 809 F.2d at 154; In re Williams, 181 B.R. 532, 535 (D.Kan.1995); Troy Plastics, 129 B.R. at 474. Election of a trustee directly impacts the bankruptcy estate and, therefore, its beneficiaries. After all, the trustee is the estate’s representative. See § 323 (“The trustee in a case under this title is the representative of the estate.”); Edmonston v. Murphy (In re Edmonston), 107 F.3d 74, 76 (1st Cir.1997); see also; § 704 (describing duties of the trustee); In re Goodwin’s Discount Furniture, Inc., 16 B.R. at 887-88 (observing that the trustee, representing the unsecured creditors, has standing to appeal orders on claim allowance and disposing of estate property, not the “[h]opelessly insolvent” debtor). And, in the usual case, it is the creditors, not the debtors, who are the estate’s beneficiaries. Standing in a Chapter 7 Debtor’s Shoes For. present purposes, bankruptcy court orders may be" }, { "docid": "15165620", "title": "", "text": "(8th Cir.1979); Broady v. Miner (In re Broady), 96 B.R. 221, 223 (Bankr.E.D.Mo.1988) (citing Kapp). This is because an objection to a proposed distribution only affects how much each cred itor will receive and does not affect the debt- or’s rights. See Merrifield, 214 B.R. at 366; In re El San Juan Hotel, 809 F.2d 151, 154-55 (1st Cir.1987). The exception is where it appears that, if the contested claims are disallowed, there will be a surplus. Kapp, 611 F.2d at 707; see also McGuirl v. White, 86 F.3d 1232, 1234 (D.C.Cir.1996); San Juan Hotel, 809 F.2d at 155 n. 6. In this ease, this exception applies. The Trustee’s Final Report and Account reflects that $45,817.44 was available for payment to general unsecured creditors. Excluding Claim Number 7, which is the subject of this appeal, general unsecured claims totaled $8,243.64. Thus, if there is no distribution on Claim Number 7 and the other general unsecured creditors were paid in full, there would be a $37,573.80 surplus left to be returned to the Debtor. Because of this potential surplus, the Debtor, at least, has standing to contest issues relating to the distribution. Kapp, 611 F.2d at 706-07; McGuirl, 86 F.3d at 1234; San Juan Hotel, 809 F.2d at 155 n. 6. D. Relief Under Bankruptcy Rule 9024 On the assumption that at least one Appellant has standing, we move to the merits. Stripped to its basics, this appeal is one which challenges the September 20 order on two grounds. Each ground is without merit for a separate reason. First, Appellants assert that the September 20 order was erroneous in the first instance. According to Appellants, no order allowing distributions should have been entered because Claim Number 7 was not allowable under the applicable provisions of the Bankruptcy Code. That question, and the responsive arguments of mootness and res judicata, are currently pending before a different appellate court, the Eighth Circuit Court of Appeals. Since the Circuit Court is deciding those issues, we obviously lack jurisdiction to consider them. Liddell v. Board of Educ., 73 F.3d 819, 822 (8th Cir.1996) (“Once appealed," } ]

[ { "docid": "11755177", "title": "", "text": "to the procedures imposed by the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under the AEDPA, a petitioner must obtain a COA before an appeal can be taken to this Court. See 28 U.S.C.A. § 2253(c)(2) (West 2003); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). “[W]hen a habeas applicant seeks permission to initiate appellate review of the dismissal of his petition, the court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA will be granted if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West 2003). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will riot prevail.” Id. at 338, 123 S.Ct. 1029. Finally, “[bjecause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [Petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We note that under the AEDPA, federal courts are to give a level of deference to state court findings per §§ 2254(d)(2) and (e)(1). At the" } ]

[ { "docid": "11190473", "title": "", "text": "federal habeas court which was not before the state habeas court due to state habeas counsel’s failures. The district court denied Licho’s motion for a new trial on August 23, 2012, and Licho thereafter, timely moved for a COA. II. A petitioner is required to seek a COA before an appeal of the district court’s denial of his § 2254 habeas petition. 28 U.S.C. § 2253(c)(1). To obtain a COA, a prisoner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). If a district court has rejected a prisoner’s constitutional claim on the merits, this court will issue a COA only if the prisoner demonstrates that jurists of reason could debate whether the district court’s resolution of his constitutional claims were correct, or could conclude the issues presented are “adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). “A claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. As we have explained, the standard a petitioner must meet to be granted a COA in a death penalty case is less burdensome than in a non-capital case. See Clark v. Thaler, 673 F.3d 410, 425 (5th Cir.2012) (“While the nature of a capital case is not of itself sufficient to warrant the issuance of a COA, in a death penalty case any doubts as to whether a COA should issue must be resolved in the petitioner’s favor.”) (quotation marks and footnote omitted). Accordingly, where the question is close, “any doubt as to whether a COA should issue in a death-penalty case must be resolved in favor of the petitioner.” Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005). “In a habeas corpus appeal, we review the district court’s findings of fact for clear error and its conclusions of law de novo," }, { "docid": "810364", "title": "", "text": "of Criminal Procedure article 37.071, as amended effective September 1, 1991, is unconstitutional. II. Legal Standard Our review of Sonnier’s request for a COA is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which provides that a petitioner can appeal a district court’s dismissal of a petition under 28 U.S.C. § 2251 only if either the district court or this court issues a COA. See 28 U.S.C. § 2253(c)(1); Fed. R.App. P. 22(b)(1). A court can issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has explained that under this standard, a COA should issue, only when the petitioner demonstrates “that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Thus, a petitioner seeking a COA must show that “ ‘reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’ ” Id. at 338, 123 S.Ct. 1029 (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). When determining whether a petitioner has established an entitlement to a COA, we do not fully consider the underlying factual and legal bases in support of the petitioner’s claims. Id. at 336, 123 S.Ct. 1029. Rather, this court conducts only a limited, “threshold inquiry into the underlying merit of [the petitioner’s] claims.” Id. at 327,123 .S.Ct. 1029. Finally, in capital cases, doubts over whether a COA should issue are to be resolved in favor of the petitioner. See Newton v. Dretke, 371 F.3d 250, 254 (5th Cir.2004). III. Discussion A. Ineffective Assistance of Counsel Sonnier first asserts that he is entitled to a COA because his trial counsel, Wilford Anderson and Stephen Morris, were ineffective during the punishment phase of his trial for failing to: (1) investigate for mitigating evidence; and (2) present known available mitigating evidence. The Sixth" }, { "docid": "21875451", "title": "", "text": "AEDPA, a petitioner must obtain a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Where the district court has denied claims on procedural grounds, a COA should issue only if it is demonstrated that “jurists of reason would find it debatable whether the petition states a valid claim of a denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]ecause" }, { "docid": "5215502", "title": "", "text": "2011 WL 4826968 (Tex.Crim. App. Oct. 12, 2011). Garza filed his amended federal habeas petition in 2012, which the district court denied. Garza v. Thaler, 909 F.Supp.2d 578, 691 (W.D.Tex.2012). The district court also denied Garza a COA. Id. Garza now requests a COA from this court. II. The AEDPA governs our consideration of Garza’s request for a COA. Under the AEDPA, a state habeas petitioner must obtain a COA before he can appeal the federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a jurisdictional prerequisite without which federal courts of appeals lack jurisdiction to rule on the merits of the appeals from habeas petitioners). A COA is warranted upon a substantial showing of the denial of a constitutional right. § 2253(c)(2). A petitioner satisfies this standard if reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To obtain a COA when the district court has denied relief on procedural grounds, such as procedural default, a petitioner must show both a debatable claim on the merits and that the district court’s procedural ruling is debatable. See id. at 484-85, 120 S.Ct. 1595. The issue is the debatability of the underlying constitutional claim, not the resolution of the debate. Miller-El, 537 U.S. at 342, 123 S.Ct. 1029; see id. at 338, 123 S.Ct. 1029 ([A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail). This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Id. at 336, 123 S.Ct. 1029. In cases involving the death penalty, any doubts as to whether a COA shoúld issue must be resolved in [the petitioner’s] favor. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We" }, { "docid": "21519886", "title": "", "text": "the denial of habeas relief. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); see also 28 U.S.C. § 2253(c)(2). A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” Id. We conduct only a “threshold inquiry” and must issue a COA if “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or -wrong.” Miller-El, 537 U.S. at 336, 338, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. In death penalty cases, we resolve in the petitioner’s favor any doubt about whether a COA should issue. Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005). Nevertheless, “issuance of a COA must not be pro forma or a matter of course,” and “a prisoner seeking a COA must prove ‘something more than the absence of frivolity.’ ” Miller-El, 537 U.S. at 337-38, 123 S.Ct. 1029 (quoting Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). To prevail on an ineffective assistance of counsel claim, Skinner must show that trial counsel’s performance was deficient and that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Performance is deficient where counsel’s representation falls “outside the wide range of professionally competent assistance” expected of him. Id. at 690, 104 S.Ct. 2052. Prejudice occurs only if “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. IV. A. Skinner contends that trial counsel should have conducted DNA tests of crime scene evidence not tested by the state, including hairs clutched in Twila’s right hand, material found under her fingernails, vaginal swabs taken at her autopsy, blood found on two knifes, and hair and perspiration on a man’s jacket found near her body. The district court held that" }, { "docid": "9442960", "title": "", "text": "to whether a COA should issue in a death-penalty case must be resolved in favor of the petitioner. Medellin v. Dretke, 371 F.3d 270, 275 (5th Cir.2004) (per curiam); Newton v. Dretke, 371 F.3d 250, 254 (5th Cir.2004). In determining whether the district court’s denial of Pippin’s petition was debatable, we must keep in mind the deferential standard of review that the AEDPA requires a district court to apply when considering a petition for habeas relief. See Brown v. Dretke, 419 F.3d 365, 371 (5th Cir.2005) (“With respect to the review of factual findings, AEDPA significantly restricts the scope of federal habeas review.”); see also Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir.2003). Under the AEDPA, a federal court is not to grant a writ of habeas corpus “with respect to any claim that was adjudicated on the merits in State court proceedings” unless it determines that the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A state court’s decision is contrary to Supreme Court precedent if: (1) “the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law”; or (2) “the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that of the Supreme Court].” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (opinion of O’Connor, J.) (interpreting the statutory language “contrary to, or involved an unreasonable application of’). “A state court’s decision is an unreasonable application of clearly established federal law whenever the state court identifies the correct governing legal principle from the Supreme Court’s decisions but applies that principle to the facts of the prisoner’s case in an objectively unreasonable manner.” Young v. Dretke, 356 F.3d 616, 623 (5th Cir.2004) (internal quotation marks omitted); accord Williams, 529 U.S. at 409, 120 S.Ct. 1495. “An unreasonable application may also occur if ‘the state" }, { "docid": "11190474", "title": "", "text": "debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. As we have explained, the standard a petitioner must meet to be granted a COA in a death penalty case is less burdensome than in a non-capital case. See Clark v. Thaler, 673 F.3d 410, 425 (5th Cir.2012) (“While the nature of a capital case is not of itself sufficient to warrant the issuance of a COA, in a death penalty case any doubts as to whether a COA should issue must be resolved in the petitioner’s favor.”) (quotation marks and footnote omitted). Accordingly, where the question is close, “any doubt as to whether a COA should issue in a death-penalty case must be resolved in favor of the petitioner.” Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005). “In a habeas corpus appeal, we review the district court’s findings of fact for clear error and its conclusions of law de novo, applying the same standards to the state court’s decision as did the district court.” Lewis v. Thaler, 701 F.3d 783, 787 (5th Cir.2012) (quoting Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.2004)). Thus, the COA application is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Miller v. Thaler, 714 F.3d 897, 901 (5th Cir.2013). In determining whether a COA should issue, we “view the petitioner’s arguments through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d).” Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir.2000); see also Druery v. Thaler, 647 F.3d 535, 538 (5th Cir.2011). Under § 2254(d)(1), a state prisoner’s “application for a writ of habeas corpus ... shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" }, { "docid": "1635856", "title": "", "text": "U.S.C. § 2253(c)(1). See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Because the district court did not grant a COA on any of Ward’s claims, we have jurisdiction at this juncture only to consider whether a COA should issue, and not the ultimate merits of his claims. E.g., 28 U.S.C. § 2253(c); Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029. A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists. could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Specifically, “the petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Feldman v. Thaler, 695 F.3d 372, 377 (5th Cir.2012) (alteration omitted) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). The issue is “the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Thus, this Court’s examination is a “threshold inquiry [that] does not require full consideration of the factual or legal bases adduced in support of the claims,” but rather “an overview of the claims in' the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. In death-penalty cases, “any doubts as to whether the COA should issue are resolved in favor of the petitioner.” Moore v. Quarterman, 534 F.3d 454, 460 (5th Cir.2008). “[T]he determination of whether a COA should issue must be made by viewing the petitioner’s arguments through the lens of the deferential scheme laid out in" }, { "docid": "21875452", "title": "", "text": "of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Where the district court has denied claims on procedural grounds, a COA should issue only if it is demonstrated that “jurists of reason would find it debatable whether the petition states a valid claim of a denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]ecause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We further note that when reviewing the district court’s assessment, we must be mindful of the deferential standard of review of 28 U.S.C. § 2254(d). Under § 2254(d), a federal court cannot grant habeas corpus relief with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of that claim either (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). With respect to the review of factual findings, AEDPA significantly restricts the scope of federal habeas review. Factual findings are presumed to be correct, and a" }, { "docid": "10857727", "title": "", "text": "other reason that the prosecutor offered for the strike. Under AEDPA, deference is due to the trial judge’s implicit finding that the prosecutor credibly asserted inattentiveness as a reason for the strike. We now turn to consider Stevens’s request for an expansion of the COA. B. Stevens asks us to expand the COA to include his claim that he was denied his right to due process because, although counsel was appointed to represent him in state post-conviction proceedings, as is his right under Mississippi law, that representation was so extremely deficient that he was denied the possibility of meaningful relief. To obtain a COA, Stevens must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, he must demonstrate that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El I, 537 U.S. at 327, 123 S.Ct. 1029 (citation omitted). “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. The Supreme Court has instructed that, in making the decision whether to grant a COA, the court must limit its examination to a “threshold inquiry,” which consists of “an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 327, 336, 123 S.Ct. 1029. The court cannot deny a COA because it believes the petitioner ultimately will not prevail on the merits of his claims. Id. at 337, 123 S.Ct. 1029. On the other hand, however, “issuance of a COA must not be pro forma or a matter of course.” Id. “While the nature of a capital case is not of itself sufficient to warrant the issuance of a COA, in a death penalty case any doubts as to whether a COA should issue must be resolved in the petitioner’s favor.” Ramirez v. Dretke, 398" }, { "docid": "13109965", "title": "", "text": "Bagwell appealed the denial of the COA on two of his habeas claims to this court. II. STANDARD OF REVIEW Bagwell’s § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). AEDPA requires Bagwell obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000). Hence, “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA will issue only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. More specifically, the petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Likewise, when the district court has rejected a claim on a procedural ground, “the petitioner must also demonstrate that ‘jurists of reason would find it debatable whether the district court was correct in the procedural ruling.’ ” Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir.2003) (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604). The Supreme Court counseled that “a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim[.]” Id. at 331, 123 S.Ct. 1029. Instead, this court should engage in an “overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Ultimately, “[t]o prevail on a petition for writ of habeas corpus, a petitioner must demonstrate that the state" }, { "docid": "9442958", "title": "", "text": "appeals first issues a COA. 28 U.S.C. § 2253(c)(1) (2004); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a “jurisdictional prerequisite” without which “federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners”); Neville v. Dretke, 423 F.3d 474, 478 (5th Cir.2005). In determining whether to grant a petitioner’s request for a COA, the Supreme Court has instructed that a “court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack v. McDaniel, 529 U.S. 473, 481, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA mil be granted “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2004). In order to meet this standard, Pippin must demonstrate that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. Although the issuance of a COA “must not be pro forma or a matter of course,” the petitioner satisfies the burden under § 2253(c) by “demonstrating] that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. at 337-38, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Finally, any doubt as" }, { "docid": "11683531", "title": "", "text": "resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). In determining whether to grant a COA, our inquiry is limited to a threshold examination that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A full consideration of the merits is not required, nor permitted, by § 2253(c)(2). Id. The fact that a COA should issue does not mean the petitioner will be entitled to ultimate relief, rather “the question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. Accordingly, we must be mindful that “a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 337, 123 S.Ct. 1029. At the COA stage, we do not apply the deferential AEDPA standard of review to examine the merits of the habeas petition. Id. at 342, 123 S.Ct. 1029 (“Before the issuance of a COA, the Court of Appeals had no jurisdiction to resolve the merits of petitioner’s constitutional claims.”). Our immediate task is to determine, not the ultimate merits of Smith’s claims, but only whether Smith has demonstrated that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). “Because the present case involves the death penalty, any doubts as to whether a COA should [be] issue[d] must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). Discussion Smith seeks a" }, { "docid": "13985815", "title": "", "text": "and the Texas Court of Criminal Appeals so ordered. The federal district court denied Leal’s petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 and sua sponte denied a COA. II To obtain a COA, Leal must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, he “must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. While the nature of a capital case is not of itself sufficient to warrant the issuance of a COA, in a death penalty case “any doubts as to whether a COA should issue must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citing Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000)). In determining whether a COA should be granted, we remain cognizant of the standard of review imposed upon the district court by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). A district court may grant habeas relief only if it determines that the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or “in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1), (2). The state court’s findings of fact are entitled to a presumption of correctness and the petitioner may overcome that presumption only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Ill Leal" }, { "docid": "17671638", "title": "", "text": "claims, none addressing Atkins. The state responded to the amended petition in January 2007, and Moore replied in May. In March 2006, Moore again applied for state habeas relief, asserting that state prosecutors and police had violated his rights under Brady. The CCA rejected that successive application as an abuse of the writ. Ex parte Moore, No. 40,046-03, 2006 WL 2615542 (Tex.Crim.App. Sept.13, 2006). In December 2007, the district court denied relief on all claims, and in January 2008 it declined to grant a COA. III. Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), a petitioner, as a matter of subject matter jurisdiction, Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029, must secure a COA to appeal the denial of habeas relief, and a COA will be granted only if he can make “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). We conduct a “preliminary, though not definitive” evaluation — a so-called “threshold inquiry” — of the peti tioner’s arguments and must issue a COA if “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El, 537 U.S. at 336, 338, 123 S.Ct. 1029 (internal citations and quotations omitted). “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Importantly, however, “issuance of a COA must not be pro forma or a matter of course,” and “a prisoner seeking a COA must prove ‘something more than the absence of frivolity.’ ” Id. at 337-38, 123 S.Ct. 1029 (quoting Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). In death penalty cases, any doubts as to whether the COA should issue are resolved in favor of the petitioner. See Lamb v. Johnson, 179 F.3d 352, 356 (5th Cir.1999). Under general principles of federal habeas law, no relief can be granted on “any claim adjudicated on the merits by a state court unless the state" }, { "docid": "7585283", "title": "", "text": "court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. When a court of appeals side steps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction. Miller-El I, 537 U.S. at 336-37, 123 S.Ct. 1029. In sum, Petitioner need not show that his habeas petition will ultimately prevail on the merits in order for this court to issue a COA. Id. at 337, 123 S.Ct. 1029. In fact, the Supreme Court has specifically instructed that a court of appeals should not deny a COA simply because the petitioner has not demonstrated an entitlement to relief. Id. Instead, “ ‘where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’” Id. at 338, 123 S.Ct. 1029 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595). “Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination.” ShisInday v. Quarterman, 511 F.3d 514, 520 (5th Cir.2007) (citing Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.1997)). For claims that were adjudicated on the merits in state court, “[o]ur role is to determine not whether [petitioner] is entitled to relief, but whether the district court’s conclusion that the state court adjudication was not contrary to or an unreasonable application of clearly established federal law is one about which jurists of reason could disagree or as to which jurists could conclude that the issues presented are adequate to deserve encouragement to proceed further.” Jackson v. Dretke, 450 F.3d 614, 616 (5th Cir.2006). III. ANALYSIS A. Remand" }, { "docid": "21519885", "title": "", "text": "was the murderer. Skinner presented evidence that Donnell was violent and hot-tempered. On the night of the murder, he was seen drunkenly harassing Twila at the party, and Mitchell claimed that Donnell had “a certain kind of hate” in his eyes. Mitchell also reported that when he returned to the party after driving Twila home, Donnell was no longer there. The defense, however, introduced no physical evidence indicating that anyone besides Skinner and the victims had been in the house at the time of the murder. II. Skinner was convicted of capital murder and sentenced to death, and the conviction was affirmed by the Texas Court of Criminal Appeals. Skinner sought federal ha-beas relief, raising a number of due process, Sixth Amendment, and ineffective assistance claims. Adopting the magistrate judge’s findings after an evidentiary hearing, the district court denied relief and denied Skinner’s application for a COA on his ineffective assistance claims. III. Under the Antiterrorism and Effective Death Penalty Act of 1996, a petitioner must secure a COA as a “jurisdictional prerequisite” to appealing the denial of habeas relief. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); see also 28 U.S.C. § 2253(c)(2). A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” Id. We conduct only a “threshold inquiry” and must issue a COA if “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or -wrong.” Miller-El, 537 U.S. at 336, 338, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. In death penalty cases, we resolve in the petitioner’s favor any doubt about whether a COA should issue. Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005). Nevertheless, “issuance of a COA must not be pro forma or a matter of course,” and “a prisoner seeking a COA must prove ‘something more than the absence of frivolity.’ ” Miller-El, 537" }, { "docid": "23609455", "title": "", "text": "to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. The Supreme Court instructs that the “question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. Finally, “[b]e-cause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). This court may not grant a COA if there is no doubt that reasonable jurists would agree with the district court’s resolution and that the issues presented are not adequate to deserve encouragement. III. DISCUSSION This is a case in two parts: the appeal, pursuant to the COA issued by the district court, and the application for an additional COA. We take the second part first and address the additional COA before reaching the substance of the appeal. A. Application for Additional COA Under AEDPA, a petitioner must obtain a COA, from either a district court judge or a circuit court judge before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c). See also Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (“[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). To determine whether a COA should be granted requires an overview of the claims in the habeas petition and a general assessment of their merits. This court looks to the district court’s resolution of the petitioner’s constitutional claims and asks whether it was debatable amongst jurists of reason. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Brown v. Dretke, 419 F.3d 365, 370 (5th Cir.2005) (citing Miller-El, 537 U.S. at 336, 123 S.Ct. 1029). After the district court refused to issue a COA as to all of his claims, Summers filed an Application for Additional Certificate of Appealability with this court. In the application, Summers raised four arguments:" }, { "docid": "9442959", "title": "", "text": "In order to meet this standard, Pippin must demonstrate that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. Although the issuance of a COA “must not be pro forma or a matter of course,” the petitioner satisfies the burden under § 2253(c) by “demonstrating] that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. at 337-38, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Finally, any doubt as to whether a COA should issue in a death-penalty case must be resolved in favor of the petitioner. Medellin v. Dretke, 371 F.3d 270, 275 (5th Cir.2004) (per curiam); Newton v. Dretke, 371 F.3d 250, 254 (5th Cir.2004). In determining whether the district court’s denial of Pippin’s petition was debatable, we must keep in mind the deferential standard of review that the AEDPA requires a district court to apply when considering a petition for habeas relief. See Brown v. Dretke, 419 F.3d 365, 371 (5th Cir.2005) (“With respect to the review of factual findings, AEDPA significantly restricts the scope of federal habeas review.”); see also Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir.2003). Under the AEDPA, a federal court is not to grant a writ of habeas corpus “with respect to any claim that was adjudicated on the merits in State court proceedings” unless it determines that the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme" }, { "docid": "18491602", "title": "", "text": "denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of them merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citation omitted). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the ease has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]eeause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted). III. SUPPRESSION OF EVIDENCE Avila contends that the State failed to disclose certain evidence in viola tion of his due process rights. The district court granted a COA as to this issue. The State has a duty to disclose evidence favorable to the accused that is material to guilt" } ]

[ { "docid": "23640152", "title": "", "text": "OPINION Before ELY and GOODWIN, Circuit Judges, and RENFREW, District Judge. ELY, Circuit Judge: The bankrupt, Charles W. Jones, commenced proceedings in late 1966 for the dissolution of his marriage to Margaret A. Jones. In March, 1971, a California Superior Court entered an Interlocutory Judgment on Dissolution of Marriage, which divided the couple’s community estate equally and ordered Charles to pay Margaret spousal support in the amount of $600 per month for 72 months. The Judgment also ordered Charles to pay $3,500 in legal fees to Margaret’s attorney, the appellee Tyson. In November, 1971, Charles filed a voluntary petition in bankruptcy. He listed as an unsecured debt the $3,500 he owed to Tyson by reason of the state court’s Judgment. Tyson then filed an application in the Bankruptcy Court for a declaration that the $3,500 debt was nondischargeable. After a hearing, the bankruptcy referee ruled that the debt was nondischargeable, and the referee’s decision was upheld by the District Court. The bankrupt appeals. Section 17(a)(7) of the Bankruptcy Act, 11 U.S.C. § 35(a)(7) (1970), provides that [a] discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as are for alimony due or to become due, or for maintenance or support of wife or child. Unbroken judicial precedent establishes that section 17(a)(7) exempts from discharge in bankruptcy those debts that are founded on the husband’s legal obligation to support and maintain his wife and children. See, e. g., Wetmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904); Norris v. Norris, 324 F.2d 826, 828 (9th Cir. 1963). Counsel fees awarded pursuant to the husband’s obligation of support and maintenance are in the nature of alimony and are, therefore, nondischargeable. In re Nunnally, 506 F.2d 1024, 1027 (5th Cir. 1975) (Texas law); Damon v. Damon, 283 F.2d 571 (1st Cir. 1960) (Maine law); In re Hargrove, 361 F.Supp. 851 (W.D.Mo.1973) (Missouri law); In re Brennen, 39 F.Supp. 1022 (E.D.N.Y.1941) (New York law). The bankrupt contends, however, that the legal services for which he was ordered" } ]

[ { "docid": "846345", "title": "", "text": "that this obligation was, in actuality, a property settlement and, therefore, dischargeable, the bankruptcy judge concluded: The Court has carefully reviewed the entire Final Judgment and Decree in detail and finds it totally unambiguous in its terms, and therefore requires no extrinsic evidence in order that it be judicially construed. It is obvious that the parties intended to provide for child support, alimony and property division and the same is dealt with clearly in separate paragraphs. There is absolutely nothing in the agreement which indicates that the required payments to the wife termed lump sum alimony is anything but that. (Emphasis added.) Although the record below is unclear as to whether the payments in question were, in fact, to be made pursuant to an agreement between the plaintiff-appellee and defendant-appellant, because the bankruptcy judge also refers to the divorce decree as “the agreement,” the court must assume there was such an agreement. Thus, the sole issue on appeal is whether the payments ordered through the agreement incorporated into the divorce decree of the DeKalb County Superior Court were properly denominated as “alimony” by the bankruptcy judge. The defendant-appellant, bankrupt, contends that the bankruptcy judge erred in his characterization of the obligation in question under applicable Georgia law in. that the obligation was for a fixed, ascertainable sum and was allegedly established to provide the wife with adequate funds to meet second mortgage payments on a former marital domicile. Contrariwise, the plaintiff-appellee argues that, in the absence of indications that the clear intention of the parties was otherwise, the bankruptcy judge correctly applied Georgia law in light of the policy to presumptively avoid the discharge of debts founded upon the husband’s continuing legal and moral obligations to support and maintain his wife and children, citing Wetmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904), and Jones v. Tyson, 518 F.2d 678 (9th Cir. 1975). Although the court is inclined to agree with the plaintiff-appellee, the record below is inadequate for this court to apply the applicable law. It is well settled that in construing agreements such as" }, { "docid": "23474819", "title": "", "text": "or support of wife or child 11 U.S.C. § 35(a)(7). Following an evidentiary hearing on the question of dischargeability, the bankruptcy judge determined that the obligations encompassed by subsections (a), (b) and (g) were nondischargeable by reason of § 17(a)(7) since they were in essence payments for support, maintenance or alimony and were not in the nature of a property settlement dischargeable in bankruptcy. In reaching that conclusion, the court considered the facts and circumstances surrounding the execution, the testimony of the attorney who represented Mrs. Smith in connection with the divorce proceedings as well as the testimony of the appellant and Mrs. Smith. While appellant’s grounds for appeal number seven, it is clear that the gravamen of the appeal is the bankruptcy judge’s finding of fact and conclusion of law that the payments were in effect support payments and, therefore, not dis-chargeable in bankruptcy. The appellant challenges, particularly, the bankruptcy judge’s admission of evidence outside the four corners of what appellant contends is an unambiguous document. Unbroken judicial precedent establishes that § 17(a)(7) of the Bankruptcy Act exempts from discharge those debts that are founded upon the husband’s continuing legal and moral obligation to support and. maintain his wife and children. See, e. g., Wetmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904); Jones v. Tyson, 518 F.2d 678 (9th Cir. 1975); In re Cox, 543 F.2d 1277, 1279 (10th Cir. 1977); Norris v. Norris, 324 F.2d 826, 828 (9th Cir. 1963). Thus, courts have been admonished not to presume that Congress intended as a part of its design in enacting the Bankruptcy Act that by relieving the unfortunate debt- or, bankruptcy also absolves the husband of his moral and legal obligations of maintenance and support. Dunbar v. Dunbar, 190 U.S. 340, 23 S.Ct. 757, 47 L.Ed. 1084 (1902); Poolman v. Poolman, 289 F.2d 332 (8th Cir. 1961). See also Goggans v. Osborn, 237 F.2d 186, 189 (9th Cir. 1956). In sum, courts should be reluctant to give effect to mere formal attributes of the agreement and avoid working a hardship “especially where [the] rights" }, { "docid": "846346", "title": "", "text": "Superior Court were properly denominated as “alimony” by the bankruptcy judge. The defendant-appellant, bankrupt, contends that the bankruptcy judge erred in his characterization of the obligation in question under applicable Georgia law in. that the obligation was for a fixed, ascertainable sum and was allegedly established to provide the wife with adequate funds to meet second mortgage payments on a former marital domicile. Contrariwise, the plaintiff-appellee argues that, in the absence of indications that the clear intention of the parties was otherwise, the bankruptcy judge correctly applied Georgia law in light of the policy to presumptively avoid the discharge of debts founded upon the husband’s continuing legal and moral obligations to support and maintain his wife and children, citing Wetmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904), and Jones v. Tyson, 518 F.2d 678 (9th Cir. 1975). Although the court is inclined to agree with the plaintiff-appellee, the record below is inadequate for this court to apply the applicable law. It is well settled that in construing agreements such as those incorporated into divorce decrees, the trial court’s task is to ascertain the intention of the parties. See, e. g., J. M. Huber Corp. v. Denman, 367 F.2d 104 (5th Cir. 1966); Travelers Indemnity Co. v. Holman, 330 F.2d 142 (5th Cir. 1964). This rule of construction governs irrespective of the contract’s apparent lack of ambiguity. Lawrence v. United States, 378 F.2d 452 (5th Cir. 1967). Accordingly, in the court’s view, the bankruptcy judge erred insofar as he failed to allow the defendant-appellant to present evidence of the circumstances surrounding the execution of the agreement incorporated into the decree bearing upon the intent of the parties and upon the defendant-appellant’s arguments that the obligation in question was, in reality, a property settlement. Because the fortuitous use of the word “alimony” is not solely determinative of the character of the obligation in the case sub judice, the bankruptcy judge should have looked beyond the detached language of the agreement, to the circumstances surrounding its formation, to ascertain whether it was, in fact, unambiguous as incorporated into" }, { "docid": "2657397", "title": "", "text": "of an intention to go beyond the mutual legal rights of the parties, we have no reason to assume that they were actuated by motives of complaisance. It is true that in Dunbar v. Dunbar it was intimated that the reason why, if provable, such a debt would not be discharged, was that it might be regarded as in substitution for alimony, the wife being guilty of no “moral delinquency.” While that cannot be the basis of our conclusion here, the case at bar is nevertheless distinguishable, because the settlement was there made only after the divorce and when therefore no marital duty any longer existed which it could liquidate. And see Norris v. Norris, 324 F.2d 826 (9th Cir. 1963), in which the husband-bankrupt won a discharge from his obligation to make certain payments to his ex-wife. In that case, after the agreement had been made, the marriage was subsequently declared null and void, seemingly because the husband was married at the time of the “purported marriage.” The Court wrote (at 828): It is well settled that “[ajlimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife,” [Audubon v. Shufeldt, 181 U.S. 575, 577, 21 S.Ct. 735, 736, 45 L.Ed. 1009 (1901)] and it is the obligation based on this duty which is saved from discharge in bankruptcy by Section 17, sub. a(2) of the Act. Wetmore v. Markoe, 196 U.S. 68, 76, 25 S.Ct. 172, 49 L.Ed. 390 (1904). The case at bar may be distinguishable from Adams, since there is evidence herein which could be relied upon to conclude that defendant’s payments to plaintiff were intended to care for the wife’s anticipated needs after her remarriage. If so, the post-remarriage obligations may not represent an undertaking by defendant in exchange for abatement of his pre-remarriage and/or pre-divorce undertakings. Thus, the entire $66,550 undertaking may represent a replacement for the husband’s common law obligation of pre-divorce and/or pre-remarriage support. On the" }, { "docid": "846347", "title": "", "text": "those incorporated into divorce decrees, the trial court’s task is to ascertain the intention of the parties. See, e. g., J. M. Huber Corp. v. Denman, 367 F.2d 104 (5th Cir. 1966); Travelers Indemnity Co. v. Holman, 330 F.2d 142 (5th Cir. 1964). This rule of construction governs irrespective of the contract’s apparent lack of ambiguity. Lawrence v. United States, 378 F.2d 452 (5th Cir. 1967). Accordingly, in the court’s view, the bankruptcy judge erred insofar as he failed to allow the defendant-appellant to present evidence of the circumstances surrounding the execution of the agreement incorporated into the decree bearing upon the intent of the parties and upon the defendant-appellant’s arguments that the obligation in question was, in reality, a property settlement. Because the fortuitous use of the word “alimony” is not solely determinative of the character of the obligation in the case sub judice, the bankruptcy judge should have looked beyond the detached language of the agreement, to the circumstances surrounding its formation, to ascertain whether it was, in fact, unambiguous as incorporated into the decree. See e. g., In re Smith, 436 F.Supp. 469 (N.D.Ga.1977) (Freeman, District Judge). See also Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123 (3d Cir. 1969); Adler v. Nicholas, 381 F.2d 168 (5th Cir. 1967). Therefore, for the above reasons, the August 29, 1977, order of the bankruptcy judge is hereby reversed, and this action is hereby remanded for further proceedings not inconsistent with this order. . Georgia courts have consistently held that “[t]here is no magic in mere, nomenclature . . . Crawford v. Schelver, 226 Ga. 105, 172 S.E.2d 686 (1970). Thus, the use of the word “alimony” in the DeKalb County Superior Court decree is not conclusive. Furthermore, several Georgia decisions have treated payments termed “alimony” as property settlements where the total amount to be paid is a definite and ascertainable sum. See, e. g., Morris v. Padgett, 233 Ga. 750, 213 S.E.2d 647 (1975); Herbert v. Huggins, 231 Ga. 489, 202 S.E.2d 443 (1973). But see Bisno v. Bisno, 239 Ga. 388, 236 S.E.2d 755 (1977). . The" }, { "docid": "20921370", "title": "", "text": "S.Ct. 287, 289, 59 L.Ed. 717 (1915), In re Hunter, 780 F.2d 1577, 1579 (11th Cir.1986), In re Delano, 50 B.R. 613, 617 (Bankr.D.Mass.1985), supports a narrow construction of the statute. This general rule implements “[t]he overriding purpose of the bankruptcy laws ... to provide the bankrupt with comprehensive, much needed relief from the burden of his indebtedness by releasing him from virtually all his debts.” In re Cross, 666 F.2d 873, 879 (5th Cir.1982). On the other hand, the long-standing policy of excepting spousal and child support from discharge in bankruptcy supports a more liberal construction: The bankruptcy law should receive such an interpretation as will effectuate its beneficient purposes and not make it an instrument to deprive dependent wife and children of the support and maintenance due them from the husband and father, which it has ever been the purpose of the law to enforce. ... Unless positively required by direct enactment the courts should not presume a design upon the part of Congress in relieving the unfortunate debtor to make the law a means of avoiding enforcement of the obligation, moral and legal, devolved upon the husband to support his wife and to maintain and educate his children. Wetmore v. Markoe, 196 U.S. 68, 77, 25 S.Ct. 172, 175, 49 L.Ed. 390 (1904). The exception from discharge for alimony and payments for maintenance and support has long been an accepted part of bankruptcy law. Even prior to the 1903 Amendment to § 17 of the 1898 Bankruptcy Act, which explicitly incorporated this exception, Act of Feb. 5, 1903, ch. 487, § 5, 32 Stat. 797, 798, the majority of courts held that such payments constituted a non-dischargeable “duty” rather than a provable “debt.” 1A Collier on Bankruptcy 1668-69 (14th ed. 1978). In Audubon v. Shufeldt, 181 U.S. 575, 21 S.Ct. 735, 45 L.Ed. 1009 (1901), the Supreme Court found this exception to be implied in the 1898 Act, which discharged all debts “founded ... upon a contract, expressed or implied,” Act of July 1, 1898, ch. 541, § 63(4), 30 Stat. 544, 563: Alimony does not arise" }, { "docid": "23474822", "title": "", "text": "obligations have been discharged in bankruptcy, the agreement must be analyzed to ascertain whether the agreement merely provides for a property settlement or whether the agreement embodies the legal obligation to support the other spouse, and the decisions in this context tend to find that maintenance and support was intended where the form of the payments more closely resembles a normal support arrangement. Thus, if the obligation terminates upon the death or remarriage of the recipient spouse, the death of the obligee spouse, and if the obligation is payable in installments over a substantial period of time, courts are inclined to rule that maintenance and support, rather than a property settlement, was intended. An-not., 74 A.L.R.2d 758 (1960) (and cases cited therein). The task for the court is to ascertain the intention of the parties from the agreement, and in construing contracts, such as that incorporated into the decree sub judice, it is the duty of the court to place itself in the position of the contracting parties in order to comprehend the intentions of the parties. E. g., J. M. Huber Corp. v. Denman, 367 F.2d 104 (5th Cir. 1966); Travelers Indemnity Co. v. Holman, 330 F.2d 142 (5th Cir. 1964). This rule of construction applies irrespective of whether the contract is ambiguous or not. Lawrence v. United States, 378 F.2d 452 (5th Cir. 1967). Similarly, in order to ascertain whether the contract is ambiguous or not— as well as its meaning—a court must look beyond any detached language in the contract and, therefore, consider the circumstances surrounding its execution and all other relevant incidents bearing on the intent of the parties or their apparent object in contracting. Adler v. Nicholas, 381 F.2d 168 (5th Cir. 1967); Ludwig Honold Manufacturing Co. v. Fletcher, 405 F.2d 1123 (3d Cir. 1969); In the Matter of Trigg, Case No. B-74-774A (N.D.Ga. May 5, 1975) (Hill, J.). See also, In re Wasden, Bankruptcy No. 475—470 (S.D.Ga.1976). As a consequence, in the case of a written contract such as that incorporated into the divorce decree, all the attendant and surrounding circumstances can be proven," }, { "docid": "23338518", "title": "", "text": "appealable. The first order that finally determined the issue of dischargeability was thus the order of September 9, which required defendant to make weekly payments to the clerk. Defendant did not acquiesce in the ruling on dischargeability by agreeing to the entry of that order. The reservation of the right to appeal makes it clear that he agreed only to make payments which would be applied toward satisfying the judgment if it was ultimately sustained. He is therefore not foreclosed from appealing the ruling on dischargeability. A timely notice of appeal from the September 9 order having been filed, we have jurisdiction to hear the appeal. Section 17a(7) of the Bankruptcy Act provides in pertinent part: “A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as (7) are for alimony due or to become due, or for the maintenance or support of wife or child . . . .” Despite the parties’ express description of the obligation created by paragraph 11 of the 1960 agreement as “alimony,” defendant maintains that section 17a(7) does not except that obligation from discharge, because, under the terms of divorce decree and in view of the unusual view of alimony taken by Indiana law, the obligation was incurred as an element of a property settlement rather than for support of the wife. The issue before us, then, is whether the term “alimony” as used in the agreement, which was incorporated by reference in the divorce decree, refers to the type of obligation contemplated by the term “alimony” in the Bankruptcy Act. The authorities are clear, and the parties do not dispute, that “alimony” in section 17a(7) of the Bankruptcy Act means payments in the nature of support for a former spouse. See Norris v. Norris, 324 F.2d 826, 828 (9th Cir. 1963); In re Baldwin, 250 F.Supp. 533, 534 (D.Neb.1966); 1A Collier on Bankruptcy, 117.23, at 1678 (1975); 3A Collier on Bankruptcy, 163.13, at 1839 (1975); cf. Wetmore v. Markoe, 196 U.S. 68, 73-74, 25 S.Ct. 172, 49 L.Ed. 390 (1904)." }, { "docid": "1096339", "title": "", "text": "or support will be determined under bankruptcy laws, not state law.” H.R.Rep.No.95-595, 95th Cong., 1st Sess. 364 (1977), U.S.Code Cong. & Admin.News 1978 at 6319. In Wetmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904) the Supreme Court stated: The bankruptcy law should receive such an interpretation which will effectuate its beneficent purposes, and not make it an instrument to deprive dependent wife and children of support and maintenance due them from the husband and father, which it has been the purpose to enforce. Systems of bankruptcy are designed to relieve the honest debtor from the weight of indebtedness which has become oppressive, and to permit him to have a fresh start in business or commercial life, freed from the obligations and responsibilities which may have resulted from business misfortunes. Unless positively required by direct enactment the courts should not presume a design upon the part of Congress, in relieving the unfortunate debtor, to make the law a means of avoiding enforcement of the obligation, moral or legal, devolved upon the husband to support his wife and to maintain and educate his children. 196 U.S. 77, 25 S.Ct. 175. These principles remain viable in the Bankruptcy Code, Section 523. The Code does not interfere with state enforcement of support obligations. American Tel. & Tel. Co. v. Merry, 592 F.2d 118 (2nd Cir. 1979). See also Cartledge v. Miller, 457 F.Supp. 1146 (S.D.N.Y.1978), Cody v. Riek er, 454 F.Supp. 22 (E.D.N.Y.1978). In the case before us, the largest debt in question arose when the Plaintiff and Defendant as husband and wife obtained a Gramatan Home Improvement Loan to repair their jointly owned property. This debt is specifically included among the financial obligations the Defendant agreed to bear. Providing a house in which his children and their mother live is of the nature of support. It is clear from the evidence presented that the very low monthly support payments could not accomplish that result and was balanced against the Defendant’s obligation to pay certain household debts. The expert testimony was clear that in view of the Defendant’s net" }, { "docid": "23338519", "title": "", "text": "of the 1960 agreement as “alimony,” defendant maintains that section 17a(7) does not except that obligation from discharge, because, under the terms of divorce decree and in view of the unusual view of alimony taken by Indiana law, the obligation was incurred as an element of a property settlement rather than for support of the wife. The issue before us, then, is whether the term “alimony” as used in the agreement, which was incorporated by reference in the divorce decree, refers to the type of obligation contemplated by the term “alimony” in the Bankruptcy Act. The authorities are clear, and the parties do not dispute, that “alimony” in section 17a(7) of the Bankruptcy Act means payments in the nature of support for a former spouse. See Norris v. Norris, 324 F.2d 826, 828 (9th Cir. 1963); In re Baldwin, 250 F.Supp. 533, 534 (D.Neb.1966); 1A Collier on Bankruptcy, 117.23, at 1678 (1975); 3A Collier on Bankruptcy, 163.13, at 1839 (1975); cf. Wetmore v. Markoe, 196 U.S. 68, 73-74, 25 S.Ct. 172, 49 L.Ed. 390 (1904). If the debt is determined to be one arising under a property settlement, it is discharged by bankruptcy. Caldwell v. Armstrong, 342 F.2d 485, 488 n. 5 (10th Cir. 1965); Goggans v. Osborn, 237 F.2d 186, 189, 16 Alaska 451 (9th Cir. 1956); see also Edmondson v. Edmondson, 242 S.W.2d 730, 736 (Mo.App.1951). The law concerning the purpose of an “alimony” award in Indiana is not entirely clear. There are cases which adopt the conventional definition of alimony as “an allowance out of the divorced husband’s estate made to the divorced wife for her support and maintenance.” Rariden v. Rariden, 33 Ind.App. 284, 285, 70 N.E. 398, 398 (1904); see also Ceiga v. Ceiga 114 Ind.App. 205, 210, 51 N.E.2d 493, 495 (1943); cf. Wallace v. Wallace, 123 Ind.App. 454, 464-465, 110 N.E.2d 514, 111 N.E.2d 90, 92 (1953). A second line of cases derives its authority from the decision of the Indiana Supreme Court in Shula v. Shula, 235 Ind. 210, 214-215, 132 N.E.2d 612, 614 (1956): “Alimony is awarded in Indiana for the" }, { "docid": "23474820", "title": "", "text": "the Bankruptcy Act exempts from discharge those debts that are founded upon the husband’s continuing legal and moral obligation to support and. maintain his wife and children. See, e. g., Wetmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904); Jones v. Tyson, 518 F.2d 678 (9th Cir. 1975); In re Cox, 543 F.2d 1277, 1279 (10th Cir. 1977); Norris v. Norris, 324 F.2d 826, 828 (9th Cir. 1963). Thus, courts have been admonished not to presume that Congress intended as a part of its design in enacting the Bankruptcy Act that by relieving the unfortunate debt- or, bankruptcy also absolves the husband of his moral and legal obligations of maintenance and support. Dunbar v. Dunbar, 190 U.S. 340, 23 S.Ct. 757, 47 L.Ed. 1084 (1902); Poolman v. Poolman, 289 F.2d 332 (8th Cir. 1961). See also Goggans v. Osborn, 237 F.2d 186, 189 (9th Cir. 1956). In sum, courts should be reluctant to give effect to mere formal attributes of the agreement and avoid working a hardship “especially where [the] rights and responsibilities with respect to the family relationship are [concerned].” Erickson v. Beardall, 20 Utah 2d 287, 437 P.2d 210,(1968). “Alimony” is usually defined as an allowance of money required to be paid by a former husband to his divorced wife for support and maintenance. See Ga. Code Ann. § 30-201. In contrast, a property settlement agreement deals essentially with a division of property belonging to the husband and wife, and it is well settled that the wife may, for a consideration, settle her claims against her husband’s property by private agreement, and waive all claims for support, maintenance, or alimony. Goggans v. Osborn, supra, 237 F.2d at 188; In re Alcorn, 162 F.Supp. 206 (N.D.Cal.1958). Smalley v. Smalley, 176 Cal.App.2d 374, 1 Cal.Rptr. 440 (1959). After a property settlement, the rights of the parties must be determined according to the law of contract and may survive the parties and continue despite contingencies of remarriage, death, or changed financial conditions of either spouse. In re Alcorn, supra. In any event, when a party claims that" }, { "docid": "23474827", "title": "", "text": "for tax advantages, and that cash payments were not intended to constitute a division of marital property. At the outset, we agree with the bankruptcy judge’s conclusion that in determining the dischargeability of a given debt, we are not bound by the form of the transaction nor by the label given by the parties to payments owing under an arrangement settling their marital rights and obligations; on the contrary, it is the court’s duty to ferret out the substance of the transaction. See, e. g., Adler v. Nicholas, 381 F.2d 168, 170 (5th Cir. 1967); In re Nunnally, 506 F.2d 1024 (5th Cir. 1975); Westmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904); In re Alcorn, 162 F.Supp. 206 (N.D.Cal.1958); Williams v. Department of Social and Health Services, 529 F.2d 1264 (9th Cir. 1976). Cf. Pepper v. Litton, 308 U.S. 295, 305-06, 60 S.Ct. 238, 84 L.Ed. 281 (1939); Poolman v. Poolman, 289 F.2d 332, 335 (8th Cir. 1961). In other words, as one court has aptly described our concern herein: The real issue in this case is not . whether the award of the divorce decree was alimony or a property settlement, but rather whether the “property settlement” was really an award for the support and maintenance of [the] wife. Lyon v. Lyon, 115 Utah 466, 206 P.2d 148, 150 (1949). On the other hand, our correlative concern is to what extent this court may go, by consideration of evidence extrinsic to the document itself, in arguably deviating from the express terms of a “lump sum” settlement for federal income tax purposes and hold that the payments were for “alimony maintenance and support” for bankruptcy purposes, particularly when several courts have been reluctant to allow such payments to shed their formal tax disguise. See Yarns v. Yarus, 178 Cal.App.2d 190, 3 Cal. Rptr. 50 (1960); Abrams. v. Burg, 327 N.E.2d 745 (Mass.Sup.Jud.Ct.1975). See also, Adler v. Nicholas, supra. The task before the bankruptcy court was to construe the instant agreement. The bankruptcy judge correctly allowed the attorney who represented Mrs. Smith during the bankruptcy proceedings" }, { "docid": "22219074", "title": "", "text": "should have entertained this ancillary proceeding, we think it cannot be said that he abused his discretion or clearly erred in entertaining the bankrupt’s petition. We are convinced, however, that the state court judgment evidenced a liability for “maintenance or support of wife or child” within the meaning of Section 17 of the Bankruptcy Act, and was not a dischargeable debt. It is safe to say that the obligation to maintain and support a family includes the obligation to keep a roof over their heads. It is obvious that that is what the bankrupt undertook to do when he agreed to keep up the installment payments on the trust deed upon the home in which his divorced wife and his children were to live. That the obligation has become unduly burdensome cannot be considered in determining the legal effect of his discharge. In Wetmore v. Markoe, 196 U.S. 68, 77, 25 S.Ct. 172, 176, 49 L.Ed. 390, the Supreme Court, before the Bankruptcy Act expressly excepted liability for maintenance or support of wife or child, said; “ * * * Unless positively required by direct enactment the courts should not presume a design upon the .part of Congress, in relieving the unfortunate debtor, to make the law a means of avoiding enforcement of the obligation, moral and legal, devolved upon the husband to support his wife and to maintain and educate his children.” In this same case it was said (196 U.S. at page 72, 25 S.Ct. at page 174): “ * * * The mere fact that a judgment has been rendered does not prevent the court from looking into the proceedings with a view of determining the nature of the liability which has been reduced to judgment.” See, also: Audubon v. Shufeldt, 181 U. S. 575, 21 S.Ct. 735, 45 L.Ed. 1009; Dunbar v. Dunbar, 190 U.S. 340, 23 S.Ct. 757, 47 L.Ed. 1084; Blackstock v. Black-stock, 8 Cir., 265 F. 249, 251; In re Runge, D.C.E.D.N.Y., 15 F.Supp. 31; In re Ridder, 2 Cir., 79 F.2d 524, 103 A.L.R. 719, certiorari denied Ridder v. Ridder, 297 U.S." }, { "docid": "23474823", "title": "", "text": "the parties. E. g., J. M. Huber Corp. v. Denman, 367 F.2d 104 (5th Cir. 1966); Travelers Indemnity Co. v. Holman, 330 F.2d 142 (5th Cir. 1964). This rule of construction applies irrespective of whether the contract is ambiguous or not. Lawrence v. United States, 378 F.2d 452 (5th Cir. 1967). Similarly, in order to ascertain whether the contract is ambiguous or not— as well as its meaning—a court must look beyond any detached language in the contract and, therefore, consider the circumstances surrounding its execution and all other relevant incidents bearing on the intent of the parties or their apparent object in contracting. Adler v. Nicholas, 381 F.2d 168 (5th Cir. 1967); Ludwig Honold Manufacturing Co. v. Fletcher, 405 F.2d 1123 (3d Cir. 1969); In the Matter of Trigg, Case No. B-74-774A (N.D.Ga. May 5, 1975) (Hill, J.). See also, In re Wasden, Bankruptcy No. 475—470 (S.D.Ga.1976). As a consequence, in the case of a written contract such as that incorporated into the divorce decree, all the attendant and surrounding circumstances can be proven, and if there is an ambiguity, fraud or mutual mistake, parol evidence may be admissible to explain it. However, parol evidence cannot be employed to add to, detract from, or vary the terms of the written instrument. Ga. Code Ann. §§ 20-704(1); 38-501 and 502. See, e. g., R. C. Craig Ltd. v. Ships of the Sea, Inc., 401 F.Supp. 1051,1058 (S.D.Ga.1975); Molly Pitcher Canning Co. v. R. H. Smalling's Son’s, 129 Ga.App. 742, 200 S.E.2d 908 (1974). Despite the parol evidence rule, however, it is well settled that the mere choice of language of the parties or their fortuitous use of the word “alimony” or “property settlement” is not solely determinative of the character of the obligation, since the substance of the agreement should control over its form for the purpose of determining its dischargeability in bankruptcy. Adler v. Nicholas, supra; Williams v. Department of Social and Health Services, 529 F.2d 1264 (9th Cir. 1976); Poolman v. Poolman, 289 F.2d 332, 335 (8th Cir. 1961). Cf. Pepper v. Litton, 308 U.S. 295, 305-06, 60" }, { "docid": "23474842", "title": "", "text": "depending upon the period of time in question. While we are not unmindful of the strictures of the parol evidence rule, we are not compelled to conclude, in view of the peculiar hybrid character of the instant agreement taken together with well-documented and essentially unrebutted extrinsic evidence of the circumstances surrounding the execution of the instant divorce agreement, that the payments in subparagraphs 2(a), (b) and (g) reflect the overriding concern and the intent of the parties that provision for Mrs. Smith’s continued support and maintenance should be made, and as such, such obligations were not discharged in bankruptcy by reason of § 17(a)(7). In reaching this conclusion, we are cognizant as was the bankruptcy judge that bankruptcy courts are essentially courts of equity to be guided by equitable doctrines and principles, see, e. g., Bank of Marin v. England, 385 U.S. 99, 87 S.Ct. 274, 17 L.Ed.2d 197 (1966); Maley v. Carroll, 381 F.2d 147 (5th Cir. 1967), and in the exercise of our jurisdiction, we should avoid presumptively discharging the legal and moral obligations of the husband to support, in the absence of the clear intention of the parties and the Act to do otherwise. See Wetmore v. Markoe, supra. Accordingly, for the reasons hereinabove expressed, the order of the bankruptcy judge entered July 26, 1976, is hereby AFFIRMED. IT IS SO ORDERED. . The agreement sub judice provides, in pertinent part: In view of their intention to live apart the rest of their lives, they are desirous of settling their property rights, alimony, maintenance, division of property, custody of and support for the children and attorney’s fees for an attorney representing the Wife. . To provide alimony, property settlement, support of Wife and Children, Husband shall pay and convey to Wife the following: (a) $25,000 in cash payable as follows: $2,083.33 on execution of this agreement; $2,083.33 on February 1, 1974; $2,083.33 on May 1, 1974; $6,250.00 on November 1, 1974; $6,250.00 on May 1, 1975; and $6,250.00 on November 1, 1975. All payments under this subparagraph shall be without interest. (b) A lump sum payment of" }, { "docid": "23474826", "title": "", "text": "on a monthly basis. However, despite the plain language of paragraph 2(b) itself designating the pay- ' ments as “property settlement, and not alimony”, the bankruptcy judge concluded that they arose as a substitute for alimony, support, and maintenance, although the method for making such payments was based primarily upon a desire of the parties, particularly the appellee, to take advantage of pertinent provisions of the Internal Rev enue Code relating to the favorable tax treatment accorded the recipient of lump sum property settlements payable in installments over a period of ten years or less vis a vis “alimony.” Moreover, the bankruptcy judge further found that payments made during the parties’ separation and the payments made pursuant to paragraphs 2(a) and (b) were made from appellant’s income from his law practice, rather than from liquidation of certain substantial real estate holdings. Accordingly, the bankruptcy judge concluded that the payments in paragraphs 2(a) and (b) were in reality provision for appellee’s support and maintenance despite their apparent formal attributes as installment payments of a property settlement for tax advantages, and that cash payments were not intended to constitute a division of marital property. At the outset, we agree with the bankruptcy judge’s conclusion that in determining the dischargeability of a given debt, we are not bound by the form of the transaction nor by the label given by the parties to payments owing under an arrangement settling their marital rights and obligations; on the contrary, it is the court’s duty to ferret out the substance of the transaction. See, e. g., Adler v. Nicholas, 381 F.2d 168, 170 (5th Cir. 1967); In re Nunnally, 506 F.2d 1024 (5th Cir. 1975); Westmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904); In re Alcorn, 162 F.Supp. 206 (N.D.Cal.1958); Williams v. Department of Social and Health Services, 529 F.2d 1264 (9th Cir. 1976). Cf. Pepper v. Litton, 308 U.S. 295, 305-06, 60 S.Ct. 238, 84 L.Ed. 281 (1939); Poolman v. Poolman, 289 F.2d 332, 335 (8th Cir. 1961). In other words, as one court has aptly described our concern herein:" }, { "docid": "18791838", "title": "", "text": "trust was not dischargeable in bankruptcy. As a part of its reasoning, it held that the language in Wetmore v. Markoe, 196 U.S. 68, 77, 25 S.Ct. 172, 176, 49 L.Ed. 390, that unless positively required by direct enactment the Court should not presume “a design upon the part of Congress, in relieving the unfortunate debtor, to make the law a means of avoiding enforcement of the obligation, moral and legal, devolved upon the husband to support his wife and to maintain and educate his children.” Though it is clear that the language of the Bankruptcy Act as it regards the fact of whether a sum is alimony is to be determined by federal law, the federal law and the law in Virginia are in accord. The “authorities are clear, and the parties do not dispute, that ‘alimony’ in section 17(a)(7) of the Bankruptcy Act means payments in the nature of support for a former spouse.” [citations omitted]. Nichols v. Hensler, 528 F.2d 304, 307 (7th Cir.1976). In Stephens v. Stephens, 465 F.Supp. 52, 53 (W.D.Va.1979), the Court said that irrespective of § 17(a)(7) of the Bankruptcy Act, “alimony, maintenance, and support are not dischargeable as they are not debts within the purview of the Bankruptcy Act.” It cited Audubon v. Shufeldt, 181 U.S. 575, 578, 21 S.Ct. 735, 45 L.Ed. 1009 (1901); Melichar v. Ost, 445 F.Supp. 1162 (D.C.Md.1977). See also, In Re Carrigg referred to as Carrigg v. Carrigg, 14 B.R. 658, 8 BCD 330, D.S.C. 1981, and cases there cited. III. The language in paragraph 1 of the stipulation sets forth that husband “shall pay to the Wife $700.00 per month as spousal support and child support....” Later, in paragraph 6 of the stipulation the agreement sets forth “In addition to the payments provided in paragraph numbered 1 above, and in the nature of support to be paid by Husband to Wife, ...” husband shall pay the bills in question. Paragraph 1 provides for payments as “spousal support and child support.” If paragraph 6 did not intend to make the payments of the said bills as “support" }, { "docid": "20921371", "title": "", "text": "a means of avoiding enforcement of the obligation, moral and legal, devolved upon the husband to support his wife and to maintain and educate his children. Wetmore v. Markoe, 196 U.S. 68, 77, 25 S.Ct. 172, 175, 49 L.Ed. 390 (1904). The exception from discharge for alimony and payments for maintenance and support has long been an accepted part of bankruptcy law. Even prior to the 1903 Amendment to § 17 of the 1898 Bankruptcy Act, which explicitly incorporated this exception, Act of Feb. 5, 1903, ch. 487, § 5, 32 Stat. 797, 798, the majority of courts held that such payments constituted a non-dischargeable “duty” rather than a provable “debt.” 1A Collier on Bankruptcy 1668-69 (14th ed. 1978). In Audubon v. Shufeldt, 181 U.S. 575, 21 S.Ct. 735, 45 L.Ed. 1009 (1901), the Supreme Court found this exception to be implied in the 1898 Act, which discharged all debts “founded ... upon a contract, expressed or implied,” Act of July 1, 1898, ch. 541, § 63(4), 30 Stat. 544, 563: Alimony does not arise from any business transaction but from the relation of marriage. It is not founded on a contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the Court of appropriate jurisdiction. ... But its obligation in that respect does not affect its nature. Id. at 577-78, 21 S.Ct. at 736. And in Wetmore, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 the Court found that the 1903 Amendment explicitly including the exception was “declaratory of the true meaning and sense of the statute,” id. at 76-77, 25 S.Ct. at 175, rather than indicating the exception’s absence prior to 1903. Litigation arose under amended § 17 concerning the definition of “alimony.” Cases were decided on the basis of whether the payments in question constituted genuine “alimony” or, rather, dischargeable “property settlements.” E.g., Goggans v. Osborn, 237 F.2d 186, 188 (9th Cir.1955). In making this determination courts looked at the substance, rather than the formal designation," }, { "docid": "19060757", "title": "", "text": "as alimony. Likewise, in Poolman v. Poolman, 289 F.2d 332 (8th Cir. 1961), the Eighth Circuit found nondischargeable a debt enforced by a state court judgment against a husband whereby, under the terms of a property settlement, he was to make certain payments on a note secured by a deed of trust on the family residence which the wife had been awarded. The court found an obligation on the husband’s part to maintain and support a family which “includes the obligation to keep a roof over their heads.” Id. at 335. The District Court for the District of Nebraska in In re Baldwin, 250 F.Supp. 533 (D.Neb.1966) followed the rule enunciated in Poolman. The court in Baldwin noted that while household furniture and an automobile “may not be quite so basic as a roof over the wife’s head, they partake of the same nature.” Id. at 534. The court rejected the bankrupt’s contention that Congress intended a distinction to be made “between an obligation to make direct alimony and/or support payments in cash or property to a divorced wife and the obligation to make payments on loans secured by marital property.” Id. That a husband owes a duty and obligation to provide maintenance and support for his wife is a principle of long standing. In Wetmore v. Markoe, 196 U.S. 68, 77, 25 S.Ct. 172, 176, 49 L.Ed. 390 (1904), the Supreme Court observed: “Unless positively required by direct enactment the courts should not presume a design upon the Congress, in relieving the unfortunate debtor, to make the law a means of avoiding enforcement of the obligation, moral and legal, devolved upon the husband to support his wife In the February 1974 Judgment of Limited Divorce, the Superior Court directed that defendant make support payments in the amount of $50.00 per month and, in addition, to provide the plaintiff with such additional amounts as may be needed to reimburse her on account of any prior joint or joint-and-several obligations incurred by the parties. The November 15, 1978, Judgment Order revives this latter requirement. It is apparent that this reimbursement provision" }, { "docid": "17726624", "title": "", "text": "him to have a fresh start in business or commercial life, freed from the obligations and responsibilities which may have resulted from business misfortunes. Unless positively required by direct enactment the courts should not presume a design upon the part of Congress, in relieving the unfortunate debtor, to make the law a means of avoiding enforcement of the obligation, moral or legal, devolved upon the husband to support his wife and to maintain and educate his children. Wetmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904) (emphasis added). Many courts have agreed that this principle holds good in the context of modern bankruptcy law. See, e.g., Matter of Garrison, 5 B.R. 256, 261 (Bkrtcy.E.D.Mich.1980). Section 523(a)(5) contains no positive requirement that there be any change in a policy, the nondischargeability of child support obligations, long fixed in case law and statute. As an Indiana case said of alimony: “Before alimony was made nondischargeable by statute in 1903, bankruptcy case law had already ruled it to be so.” In re Knabe, 8 B.R. 53, 56 (Bkrtcy.S.D.Ind.1980). Judge Norton summarized bankruptcy treatment of these obligations: Throughout the history of the United States bankruptcy law, family support obligations have been excepted from discharge. Prior to statutory enactment, nondischargeability was based on the theory that the obligation to support a spouse or child was not a debt, and that only debts could be discharged. Thus the first statutory exception to discharge for family support obligations was “merely declaratory” of the common law. Norton Bank.L. & Prac. § 27.56. In the legislative history of § 523(a)(5), neither the House nor the Senate Report includes the language “in connection with a separation agreement, divorce decree, or property settlement agreement” as a limitation upon the kind of support protected. The intent is expressed, in the Senate Report, that the language of the bill “will apply to make nondischargeable only alimony, maintenance, or support owed directly to a spouse or dependent.” S.Rep. 95-989, 95th Cong., 2d Sess. (1978), reprinted in Collier on Bankruptcy, App. 3 (15th ed. 1982), U.S.Code Cong. & Admin.News 1978, pp." } ]

[ { "docid": "9356236", "title": "", "text": "Manufacturing Co., 550 F.2d 189 (1977) has been summarized as follows: ... the trial court standard for interlocutory relief is the balance of hardship test. Four factors enter into the determination of whether to grant or withhold interim injunctive relief: (a) plaintiffs likelihood of success in the underlying dispute between the parties; (b) whether plaintiff will suffer irreparable injury if interim relief is denied; (c) the injury to defendant if an injunction is issued; and (d) the public interest. There is a correlation between the likelihood of plaintiffs success and the probability of irreparable injury to him. If the likelihood of success is great, the need for showing the probability of irreparable harm is less. Conversely, if the likelihood of success is remote, there must be a strong showing of the probability of irreparable injury to justify the issuance of the injunction. Of all the factors, the two most important are those of probable irreparable injury to the plaintiff if the injunction is not issued and likely harm to the defendant if an injunction is issued. If upon weighing them the balance is struck in favor of the plaintiff, a preliminary injunction should issue if, at least, grave or serious questions are presented. North Carolina State Ports Authority v. Dart Containerline Co., Ltd., 592 F.2d 749 (4th Cir.1979). The task before the Court, therefore, is to apply the Blackwelder test to the motion for temporary restraining order and/or preliminary injunction in this case. If the injunction in this case is granted, M/M will suffer irreparable injury in that it will in all probability lose all the funds it pays toward the treatment. More importantly, M/M will be open to claims for any other beneficiaries who wish to enter an experimental study in the hope of finding a cure. If the injunction is not granted, the Plaintiff will not receive a treatment which the Plaintiff argues may be beneficial to him. However, as is stated in the Consent Form “It is not possible to predict whether the plaintiff will benefit from this ‘new treatment program.” The Consent Form also states the" } ]

[ { "docid": "5599935", "title": "", "text": "the cancer had not metastasized, i.e. spread to other parts of her body. Blue Cross paid for the procedure and subsequent induction chemotherapy in accordance with the insurance policy it issued to the Grahams. Although she was free of metastatic disease, Mrs. Graham was in a high-risk category for recurrence. Therefore Mrs. Graham sought aggressive preventive treatment. She contacted Cancer Centers of America and arranged to meet with Dr. Jorge Frank, a specialist in internal medicine with subspe-eialties in oncology and hematology. Dr. Frank recommended a treatment known as High Dose Chemotherapy with Stem Cell Rescue (“HDC/SCR”). HDC/SCR differs from standard chemotherapy in that patients take cancerfighting drugs in doses six to ten times higher than in standard chemotherapy. The dosage level is so high that the treatment damages the patient’s bone marrow, where blood cells are formed. This results in an increased susceptibility to infection and bleeding. To combat this side effect, a quantity of the patient’s stem cells are collected from the bone marrow or peripheral blood prior to the therapy and .then reintroduced into the patient’s body after the chemotherapy treatment. In January 1996, Dr. Frank requested that Blue Cross precertify that it would pay for the HDC/SCR treatment. On February 7, 1996, this request was denied. Based on the information submitted by Dr. Frank, as well as on the recommendation of an independent medical consultant retained through CORE, Blue Cross found that HDC/SCR is an “experimental/investigative” treatment. Blue Cross excludes this category of treatment from coverage under the Grahams’ policy. The denial letter advised Dr. Frank of the Grahams’ right to appeal the decision. On March 6, 1996, the Grahams instituted an appeal. After receiving the opinion of a second independent consultant and following the established review procedure, Blue Cross again denied the precertification. The Grahams requested a third and final appeal on April 6,1996. Blue Cross sought the opinion of a third independent consultant, again followed the established review procedures, and again concluded that HDC/SCR was not covered under the policy. The denial of the second appeal prompted the Grahams to institute this action for" }, { "docid": "11587092", "title": "", "text": "and long term health. (Pl.[’s] Comp., Lebos Aff. ¶21). Indeed, Plaintiff has submitted evidence that shows that cancer treated with high dose chemotherapy as opposed to standard dose chemotherapy has an increased response rate. Due to the chance that Plaintiff may live a longer and healthier life if she undergoes HDC/PSCR, the Court finds that Plaintiff is threatened with irreparable harm if the injunction enabling her to pursue the treatment is not granted. The threatened injury to Plaintiffs health and life outweighs the potential monetary injury to Defendant. Furthermore, the injunction would not be adverse to the public interest. Thus, the key issue before this Court is whether there is a substantial likelihood that Plaintiff will ultimately prevail on the merits. Plaintiff argues that a preliminary injunction is proper because the Group Subscriber Agreement covers the therapeutic treatment. Plaintiff asserts that the HDC/ PSCR treatment is not a bone marrow transplant and is, therefore, not excluded by bone marrow transplant exclusion. Plaintiff also asserts that the HDC/PSCR is not excluded as “experimental” or “investigational.” Plaintiff also makes the alternative argument that individual parts of the HDC/PSCR treatment, namely HDC and hospitalization are covered under the policy. Healthsource states that coverage for the HDC/PSCR is improper because (1) the Agreement does not cover the HDC/PSCR as administered on an outpatient bases , (2) the bone marrow transplant exclusion, and (3) the “experimental” status of the treatment. In situations such as this one, where the court reviews an insurer’s denial of coverage, there are three standards of review that may be utilized in reviewing the insurer’s decision: (1) de novo, (2) arbitrary and capricious, and (3) heightened arbitrary and capricious. In Firestone Tire Rubber Co, v. Bruch, the Court held: a denial of benefits challenged under 29 U.S.C. § 1132(a) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.... Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict" }, { "docid": "11587091", "title": "", "text": "for granting a preliminary injunction. Plaintiff states that she will suffer irreparable injury, the “loss of health and life within a very short period,” (Pl.[’s] Mem. in Support of Mot. for a Preliminary Injunction, p. 4), if the injunction is not issued. The Court assumes that if Plaintiff was not able to pursue the HDC/PSCR treatment, she would continue to be treated with standard dose chemotherapy. Some documents submitted by Plaintiff to Healthsource state that Stage IV breast cancer treated with high dose chemotherapy as opposed to standard dose chemotherapy show an increased response rate. (Pl.[’s] Resp. to Def.[’s] Mem. in Opp. to Pl.[’s] Application for Prelim. Inj. Relief, Ex.-Schwartzberg Dep., p. 16-17; Ex.-Letter of Dr. Champlin). Defendant has submitted evidence that shows that irreparable injury may not actually occur if Plaintiff does not undergo HDC/PSCR treatment, i.e, the HDC/PSCR may be no better than the standard level of chemotherapy. However, there is a possibility, indeed Dr. Lebos perceives it to be a strong possibility, that the HDC/ PSCR is Plaintiffs best chance for recovery and long term health. (Pl.[’s] Comp., Lebos Aff. ¶21). Indeed, Plaintiff has submitted evidence that shows that cancer treated with high dose chemotherapy as opposed to standard dose chemotherapy has an increased response rate. Due to the chance that Plaintiff may live a longer and healthier life if she undergoes HDC/PSCR, the Court finds that Plaintiff is threatened with irreparable harm if the injunction enabling her to pursue the treatment is not granted. The threatened injury to Plaintiffs health and life outweighs the potential monetary injury to Defendant. Furthermore, the injunction would not be adverse to the public interest. Thus, the key issue before this Court is whether there is a substantial likelihood that Plaintiff will ultimately prevail on the merits. Plaintiff argues that a preliminary injunction is proper because the Group Subscriber Agreement covers the therapeutic treatment. Plaintiff asserts that the HDC/ PSCR treatment is not a bone marrow transplant and is, therefore, not excluded by bone marrow transplant exclusion. Plaintiff also asserts that the HDC/PSCR is not excluded as “experimental” or “investigational.” Plaintiff" }, { "docid": "5599940", "title": "", "text": "Cir.1976)); see also Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir.1984) (Irreparable harm is “harm that cannot be prevented or fully rectified by the final judgment after trial.”). The Grahams argue that irreparable harm will occur because: A. In the absence of preauthorization, [Mrs. Graham] has been treated frequently with regular chemotherapy, which causes such serious and grave destruction of bodily functions and tissues that it is further destroying, in each and every session, her limited opportunity to be treated by [HDC/ SCR]; and, B. [Mrs. Graham’s] prognosis, without the prompt commencement of the course of treatment prescribed, including [HDC/SCR], is that she will develop metastatic malignancy and increased lymph node involvement within 2 years; and, that once such condition exists, she will have very little chance for recovery or any extended period of disease-free life. E. Plaintiffs cannot afford to pay for the prescribed treatment nor are funds available from any other source. Complaint para. 30, Graham v. Blue Cross & Blue Shield Mutual of Ohio, No. 96 C 3217 (N.D.Ill. Oct. 30, 1996) (emphasis in original). These assertions rest on the presumption that HDC/SCR is more efficacious than standard chemotherapy in preventing the recurrence of cancer in patients like Mrs. Graham. The Blue Cross policy covers standard chemotherapy for Mrs. Graham’s population, but the Grahams wish to pursue this alternative treatment program. If the Grahams cannot produce evidence that the prescribed treatment is indeed more effective than the traditional chemotherapy treatment she is undergoing at Blue Cross’s expense, their claim that Mrs. Graham will suffer irreparable harm fails. The district court found that determining the efficacy of a new medical treatment requires “Phase III” studies. Graham, slip op. at 10. This conclusion is supported by the testimony of all of Blue Cross’s experts. Even Mrs. Graham’s expert witness, Dr. Barry Meisenberg, admitted that the effectiveness of HDC/SCR could not be established without random testing. As stated by Dr. Meisenberg, “It may take a long time to demonstrate a benefit if there is one. This benefit could then only be proved by a randomized" }, { "docid": "10421766", "title": "", "text": "terms is that the plaintiffs condition, multiple myeloma, is not covered by MAP for HDC/PSCR. Thus, this court is unable to conclude that there is a substantial likelihood that the plaintiff will succeed on the merits of his ERISA claim. See Mire v. Blue Cross/ Blue Shield of Florida, 43 F.3d 567 (11th Cir.1994) (finding that a group health policy covered HDC/PSCR for only specific diseases not including the plaintiffs ovarian cancer). Furthermore, for the reasons above stated, this court finds that there is no substantial likelihood that the plaintiff will prevail on the merits of his ADA claim. Thus, the injunc-tive relief sought by the plaintiff must be denied. (A movant must carry the burden of persuasion on each of the elements of the four-prong test). See 7 James W. Moore et al., Moore’s Federal Practice, ¶ 65.04[1] (2d ed. 1993) (unlike other circuits which hold that no single factor is determinative, the Fifth Circuit requires the movant to carry the burden of proof on each factor). 2. Irreparable Harm; Balance of Harms; and the Public Interest Otherwise, this court finds that the plaintiff has shown that he likely will suffer irreparable harm inasmuch as he may miss the opportunity for a life-extending treatment. This harm far outweighs any monetary harm the defendants may suffer. Additionally, this court finds that the public interest would not be ill-served if an injunction were granted. Nevertheless, this court denies injunctive relief today because the plaintiff cannot show that he is likely to succeed on the merits of his ERISA and ADA claims. Therefore, the plaintiffs request for a preliminary injunction to require the BellSouth Medical Assistance Plan and the administrator of MAP, Blue Cross Blue Shield of Alabama to provide insurance coverage for high dose chemotherapy with peripheral stem cell rescue (HDC/PSCR) is hereby denied. SO ORDERED AND ADJUDGED. .Although the text of ERISA does not expressly mention the exhaustion doctrine, it is well-established that federal courts have the authority to require exhaustion of remedies in suits arising under ERISA. See Simmons v. Willcox, 911 F.2d 1077, 1081 (5th Cir.1990); Meza v." }, { "docid": "11587090", "title": "", "text": "the threat of irreparable harm to the plaintiff if the injunction is not granted; (3) whether the threatened injury to the plaintiff outweighs the potential harm to opposing parties; and (4) whether the issuance of a preliminary injunction would be adverse to the public interest. Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555, 1562 (11th Cir.1989), aff'd sub nom., McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). It is the party seeking a preliminary injunction who must establish all of the four requirements. Id. Due to the limited nature of the proceedings resulting in the issuance of a preliminary injunction, any findings of fact and conclusions of law made at this preliminary stage are of no binding effect at the trial on the merits. Clark v. K-Mart Corp., 979 F.2d 965, 969 (3rd Cir.1992) (citing University of Texas v. Camenisch, 451 U.S. 390, 394-95, 101 S.Ct. 1830, 1833-34, 68 L.Ed.2d 175 (1981)). With little analysis, the Court finds that Plaintiff fulfills three of the factors necessary for granting a preliminary injunction. Plaintiff states that she will suffer irreparable injury, the “loss of health and life within a very short period,” (Pl.[’s] Mem. in Support of Mot. for a Preliminary Injunction, p. 4), if the injunction is not issued. The Court assumes that if Plaintiff was not able to pursue the HDC/PSCR treatment, she would continue to be treated with standard dose chemotherapy. Some documents submitted by Plaintiff to Healthsource state that Stage IV breast cancer treated with high dose chemotherapy as opposed to standard dose chemotherapy show an increased response rate. (Pl.[’s] Resp. to Def.[’s] Mem. in Opp. to Pl.[’s] Application for Prelim. Inj. Relief, Ex.-Schwartzberg Dep., p. 16-17; Ex.-Letter of Dr. Champlin). Defendant has submitted evidence that shows that irreparable injury may not actually occur if Plaintiff does not undergo HDC/PSCR treatment, i.e, the HDC/PSCR may be no better than the standard level of chemotherapy. However, there is a possibility, indeed Dr. Lebos perceives it to be a strong possibility, that the HDC/ PSCR is Plaintiffs best chance for recovery" }, { "docid": "5599934", "title": "", "text": "KANNE, Circuit Judge. Kimberly Graham and her husband, Jon Graham, sought a preliminary mandatory injunction requiring Blue Cross & Blue Shield Mutual of Ohio to preauthorize and pay for a specialized chemotherapy treatment for Mrs. Graham. The district court denied the request for injunctive relief because the Grahams failed to show a likelihood of success on the merits. We find that the Grahams have not demonstrated that Mrs. Graham will suffer “irreparable harm” by the denial of this injunction. Although the district court discussed irreparable harm as an alternative ground for denying the injunction, the weight of the district court’s decision rests on the Grahams’ failure to demonstrate a likelihood of success on the merits. Therefore, we affirm the district court’s denial of injunctive relief on different grounds. I. History Mrs. Graham was diagnosed with breast cancer in October 1995. She underwent a modified radical mastectomy and sought preventive care to avoid recurrence of the cancer. At the time of the mastectomy, six of her lymph nodes were found to be positive for cancer, but the cancer had not metastasized, i.e. spread to other parts of her body. Blue Cross paid for the procedure and subsequent induction chemotherapy in accordance with the insurance policy it issued to the Grahams. Although she was free of metastatic disease, Mrs. Graham was in a high-risk category for recurrence. Therefore Mrs. Graham sought aggressive preventive treatment. She contacted Cancer Centers of America and arranged to meet with Dr. Jorge Frank, a specialist in internal medicine with subspe-eialties in oncology and hematology. Dr. Frank recommended a treatment known as High Dose Chemotherapy with Stem Cell Rescue (“HDC/SCR”). HDC/SCR differs from standard chemotherapy in that patients take cancerfighting drugs in doses six to ten times higher than in standard chemotherapy. The dosage level is so high that the treatment damages the patient’s bone marrow, where blood cells are formed. This results in an increased susceptibility to infection and bleeding. To combat this side effect, a quantity of the patient’s stem cells are collected from the bone marrow or peripheral blood prior to the therapy and .then" }, { "docid": "8514649", "title": "", "text": "RIPPLE, Circuit Judge. This is an appeal from a district court denial of preliminary injunction and declaratory judgment to a federal employee claiming health insurance coverage for a particular type of cancer treatment. The Office of Personnel Management (OPM), the agency charged with administering the Federal Employees Health Benefits Act (FEHBA), had determined that the employee’s specific health insurance contract did not cover the treatment. For the reasons that follow, we affirm the judgment of the district court. I BACKGROUND Judith Harris has been diagnosed as having advanced stage breast cancer. Her treating physician recommended that she undergo High Dosage Chemotherapy with Au-tologous Bone Marrow Transplants (HDC-ABMT) and referred her to Dr. Broun, an oncologist at Indiana University Medical Center. HDC-ABMT involves the use of extremely high doses of chemotherapy. During conventional chemotherapy, such high doses would result in the loss of bone marrow which produces necessary red blood cells and, consequently, would be lethal. The risk of toxicity is reduced in HDC-ABMT by removing a portion of the patient’s own (“au- tologous”) bone marrow and by reinjecting those cells after the completion of chemotherapy. According to Dr. Broun, without HDC-ABMT Ms. Harris has very little chance of surviving for five years; with the procedure, she has a greater than sixty-five percent chance of survival beyond five years. The HDC-ABMT treatment costs between $100,000 and $150,000 per patient, and Indiana University requires pre-secured financing or pre-certification from a prospective patient’s insurance company that the treatment costs will be reimbursed. Ms. Harris is a federal postal worker insured by the Rural Carrier Benefit Plan (“RCBP” or “the Plan”), a health insurance policy that is underwritten by the defendant, Mutual of Omaha (Mutual). As a federal employee, Ms. Harris has the opportunity once a year to switch health care policies during an “open season.” During open season, employees receive a comparison chart that summarizes the general differences in coverage offered by the various policies. Ms. Harris switched policies most recently at the beginning of 1992, after she had been diagnosed with breast cancer. She selected the Rural Carrier Benefit Plan because it" }, { "docid": "23299909", "title": "", "text": "get.” (J.A. at 605.) Such clinical trials also require that each participating patient be advised of the nature of the treatment and its attendant risks. On April 27,1994, Dr. Wolff requested pre-authorization from Blue Cross, specifically indicating that he was “requesting authorization for the treatment of this patient with high-dose chemotherapy with autologous stem cell and marrow rescue.” (J.A. at 17.) Soon thereafter, on April 29, 1994, Blue Cross denied pre-authorization. The offered reason for the denial was that “[h]igh-dose chemo(radio)therapy is considered investiga-tional in the treatment of epithelial ovarian cancer.” (J.A. at 18.) On June 6, 1994, Dr. Wolff again wrote to Blue Cross, appealing its initial coverage decision. On June 9, 1994, Blue Cross reaffirmed its denial of coverage, stating that it “must deny proposed high-dose chemotherapy for diagnosis epithelial ovarian carcinoma from two viewpoints: a) policy denial — considered investi-gational in diagnosis of epithelial ovarian cancer [and] b) contractually excluded per amendment to group policy — not covered for ovarian cancer other than germ cell tumors.” (J.A. at 20.) Mrs.- Martin’s final appeal to Blue Cross was by a letter from her lawyer on July 6, 1994, which included several medical articles on the effectiveness of the recommended treatment for ovarian cancer. Blue Cross responded on August 2, 1994, explaining that [t]he Technology Evaluation and Coverage (TEC) program of the Medical Advisory panel of the Blue Cross and Blue Shield Association reviewed all of the scientific published peer reviewed literature on [au-tologous bone marrow transplant] for treating epithelial ovarian cancer. The treatment modality does not meet our coverage eligibility guidelines. I have enclosed a copy of these guidelines for you. (J.A. at 1014.) Blue Cross appended to this letter its five-factor analysis for determining if a procedure was experimental or investigative. In July of 1994, before receiving the final letter from Blue Cross but after receiving both denials of pre-authorization, Mrs. Martin decided to undergo the procedure. Mrs. Martin conceded that she “actually under went the procedure ... with knowledge that Blue Cross was taking the position it wasn’t covered.” (J.A. at 297.) The procedure was successful," }, { "docid": "535034", "title": "", "text": "rate as a reason for denying coverage appears somewhat disingenuous, as Blue Cross, under other policies, does cover HDCT-ABMT treatment, despite its treatment mortality rate. .In support of this conclusion, Dr. Beveridge offered the example of testicular cancer. Chemotherapy is now the well-established therapy for testicular cancer. Yet, clinical investigative procedures continue.. Dr. Beveridge explained that researchers are trying to evaluate whether it is possible to (i) reduce dose toxicity and (ii) increase chemotherapy dose efficacy. . See, e.g., Reilly, 846 F.2d at 423-24 (7th Cir. 1988), where the court concluded, obiter, that an administrator's decision \"to grant or deny coverage based solely on a success ratio per se” may be arbitrary and capricious. . After ruling for plaintiff from the bench, the Court noted, obiter, that Blue Cross' coverage denial decision would probably have survived review under an arbitrary and capricious standard. Because this issue was not squarely presented, the Court concludes, on reflection, that the issue would deserve more thorough consideration in the event this decision is reversed with respect to the standard of review. There is no doubt, however, that Blue Cross' position that HDCT-ABMT is experimental was asserted in good faith and was not insubstantial." }, { "docid": "2274423", "title": "", "text": "COFFEY, Circuit Judge. Grace Rodela Fuja, a thirty-seven year-old woman suffering from breast cancer, sued her insurer, the defendant, Benefit Trust Life Insurance Company (“Benefit Trust”), for its refusal to pay for a “high-dose chemotherapy treatment with autologous bone marrow transplantation” (“HDC/ABMT”). Fuja sought injunctive and declaratory relief to prevent the defendant from denying coverage for the treatment under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B) and (a)(3). The court entered judgment for Fuja enjoining the defendant from denying coverage. The defendant Benefit Trust Life Insurance Company, subsequently paid for the treatment but now appeals the judgment. We reverse. FACTS In August, 1989, Fuja was diagnosed with breast cancer and underwent a lumpectomy and a modified radical mastectomy. Immediately thereafter, beginning in September 1989, she received six months of standard-dose chemotherapy treatment and seemed to remain in remission until February of 1992 when her oncologist observed that the cancer had spread to both her lungs. From February through December of 1992, Fuja responded to standard-dose chemotherapy but during this period her physician came to the conclusion that continued treatment with such standard dose chemotherapy offered her but a negligible chance of survival. Thus she prescribed a regimen of HDC/ABMT. HDC/ABMT is a two-step procedure. Physicians first extract (“harvest”) 'the bone marrow cells from the patient’s body and place them temporarily in frozen storage. At this time, the patient undergoes a cycle of high-dose chemotherapy in hopes of killing the cancer cells. Because the high-dose chemotherapy also attacks the bone marrow cells, it is necessary to withdraw some of the bone marrow prior to undergoing the high-dose chemotherapy. Without initially removing a portion of the bone marrow cells, the high-dose chemotherapy would be lethal to the patient because of its myeloblative effect (it destroys bone marrow cells which produce blood cells (red and white) as well as platelets) rendering the patient highly susceptible to infection. After completing the administration of the high-dose chemotherapy, the patient’s own (“autologous”) stored marrow is reinfused intravenously into the bloodstream to relieve the patient from the toxic effects of the chemotherapy. HDC/ABMT" }, { "docid": "5599943", "title": "", "text": "of these treatments is better than, worse than, or equal to conventional chemotherapy or other treatment options.” Erban Aff. para. 5. In his deposition, Dr. Erban testified as follows: Q. With respect to the subclassification of overall breast cancer patients that Kimberly Graham is a part of, to what extent have any well-designed studies been conducted and completed so as to permit anyone to draw conclusions about a positive net health outcome for the treatment that was proposed? A. I believe it’s too early to say that there are any that are completed that will answer the question for Mrs. Graham and for patients like Mrs. Graham. Erban Dep. at 103-04. Even the plaintiffs’ witnesses testified that the effects of HDC/ SCR, as compared with standard chemotherapy, are uncertain at the present time. Dr. Jorge Frank, Mrs. Graham’s treating physician, admitted that he could not conclude with certainty that HDC/SCR would be more helpful to Mrs. Graham than standard chemotherapy. He stated, “I think that there has not been enough data accumulated on sufficient numbers of patients with certainty, with certainty to say that this [HDC/SCR] is the treatment and that this is better than anything else.” Rec. Tr. Vol. 2 at 130. Dr. Frank also acknowledged on cross-examination that the lack of information from randomized clinical trials meant that he did not know with certainty what would happen to Mrs. Graham if the treatment he proposed was administered. Rec. Tr. Vol. 2 at 125-27. In addition to these statements by Mrs. Graham’s treating physician, her expert witness concluded: “We’ll need the completion of phase 3 randomized trials to know what benefit, if any, and what magnitude the benefit is to this therapy.” Meisenberg Dep. at 83. In short, there is no evidence to suggest that the treatment Mrs. Graham seeks is any more effective than the standard chemotherapy currently available to her. As such, we find that the Grahams cannot establish that Mrs. Graham will suffer irreparable harm. Thus, the district court did not abuse its discretion by denying the Grahams’ request for a mandatory preliminary injunction. We therefore" }, { "docid": "6444996", "title": "", "text": "MEMORANDUM OPINION AND ORDER LINDBERG, District Judge. On March 10,1995, plaintiff Phyllis Grethe filed a complaint against defendant Trust-mark Insurance Company (“Trustmark”) seeking a mandatory injunction and declaratory relief. The complaint states that Ms. Grethe is currently undergoing treatment for life-threatening, inoperable breast cancer. Ms. Grethe seeks an order from this court mandatorily enjoining Trustmark to provide preauthorization coverage for Grethe for High-Dose Chemotherapy with Autologous Bone Marrow Transplant or Peripheral Stem Cell Rescue (“HDCT/ABMT or PSCR”). Ms. Grethe has now moved for a preliminary injunction ordering Trustmark to pay for HDCT/ABMT treatment. The court held a hearing on the motion on March 24, 1995. 1. FINDINGS OF FACT Ms. Grethe is a 50 year old woman who was first diagnosed with breast cancer in 1992. DE 1 at 30. She was at all relevant times a beneficiary under an employee welfare benefit plan established and maintained by her husband’s employer under the Employee Retirement Income Security Act of 1974, as amended, (“ERISA”), 29 U.S.C. §§ 1001 et seq. Defendant’s Hearing Br at 2. Ms. Grethe underwent surgery and standard-dose chemotherapy and seemed to be doing fairly well until the Fall of 1994 when she learned that the cancer had metasticized into her pulmonary nodules. Her treating oncologist, Dr. Gershon Y. Locker, put her back on chemotherapy. DE 1 at 30. An x-ray taken in late December indicated that Ms. Grethe’s cancer was beginning to respond favorably to the chemotherapy. Tr 54. An x-ray taken on February 27,1995 showed that the cancer in her lungs has almost disappeared. Tr 39. However, despite Ms. Grethe’s current favorable response to standard-dose chemotherapy, it is inevitable that the cancer will recur in several years if standard-dose chemotherapy is the only treatment. Tr 47. Therefore, Dr. Locker has prescribed a new course of treatment for Ms. Grethe involving high-dose chemotherapy supported by autologous bone marrow transplant or peripheral stem cell rescue (“the proposed treatment”). Tr 47. In high-dose chemotherapy, the patient receives between four and eight times the standard dose of cancer-fighting drugs. Tr 48. The idea is that higher doses of a cancer-fighting" }, { "docid": "7916406", "title": "", "text": "accepted therapy for breast cancers like Henderson’s. After all, such coverage issues lie at the heart of a health insurance provider’s expertise, and the evidence and cases cited show that the issue of HDCT for breast cancer has been on the insurance industry’s horizon for some years. Although on the current state of the record Henderson has by any standard shown a likelihood of success on the merits, we note also that preliminary injunctions become easier to obtain as the plaintiff faces progressively graver harm. 11A Charles A. Wright, Arthur R. Miller and Mary K. Kane, Federal Practice and Procedure, § 2948.3 at 189-97 (1995). It is hard to imagine a greater harm than losing a chance for potentially life-saving medical treatment. As it is undisputed that the plan covers HDCT for other types of cancer for which it is an accepted treatment, and as she has shown considerable unrebutted evidence that HDCT is an accepted breast cancer treatment with significantly higher success rates than standard chemotherapy, Henderson has shown a likelihood of success on the merits warranting injunctive relief. Ill The district court also held that Henderson did not show that she would suffer irreparable harm if injunctive relief were denied. The district court reasoned that Henderson had not showed that she could not secure HDCT treatment (or an equally effective alternative) from another source. We conclude, however, that requiring Henderson to make such a showing is too speculative. Although it is true there is no evidence in the record regarding different sources from which Henderson could seek HDCT treatment, or as to alternate treatments which may be as effective as HDCT, there is evidence that Henderson had to begin treatment on June 16 or be disqualified from a program that offered HDCT as a possibility; as discussed above, there is also evidence that HDCT is more effective than standard chemotherapy. Henderson faced missing perhaps her only opportunity for HDCT if injunctive relief were not granted; given the grave and progressive nature of Henderson’s illness, this constitutes irreparable harm. The district court also held that Henderson’s bid for injunctive" }, { "docid": "5599941", "title": "", "text": "3217 (N.D.Ill. Oct. 30, 1996) (emphasis in original). These assertions rest on the presumption that HDC/SCR is more efficacious than standard chemotherapy in preventing the recurrence of cancer in patients like Mrs. Graham. The Blue Cross policy covers standard chemotherapy for Mrs. Graham’s population, but the Grahams wish to pursue this alternative treatment program. If the Grahams cannot produce evidence that the prescribed treatment is indeed more effective than the traditional chemotherapy treatment she is undergoing at Blue Cross’s expense, their claim that Mrs. Graham will suffer irreparable harm fails. The district court found that determining the efficacy of a new medical treatment requires “Phase III” studies. Graham, slip op. at 10. This conclusion is supported by the testimony of all of Blue Cross’s experts. Even Mrs. Graham’s expert witness, Dr. Barry Meisenberg, admitted that the effectiveness of HDC/SCR could not be established without random testing. As stated by Dr. Meisenberg, “It may take a long time to demonstrate a benefit if there is one. This benefit could then only be proved by a randomized trial or randomized trials.... I think the randomized trial is the gold standard and the highest level of evidence.... [R]andomized trials are going to be required to prove this ... beyond a reasonable doubt.” Meisenberg Dep. at 76. It is undisputed that no Phase III studies have been completed for persons in Mrs. Graham’s situation—Stage II with four to nine positive nodes. Although there is some evidence from Phase II studies that HDC/ SCR may be helpful for Mrs. Graham’s population, a conclusion regarding the relative efficacy of the treatment, as compared to standard chemotherapy, must await completion of the Phase III studies. The record is replete with statements supporting this position. For example, Dr. John Erban, a physician employed by CORE to give an opinion on Mrs. Graham’s precertifi-cation request, stated in his affidavit: “There are studies currently underway which are investigating the effect of [HDC/SCR] on patients in the adjuvant setting who are similarly situated to Mrs. Graham, but to date, no conclusions can be drawn from these studies as to whether either" }, { "docid": "22585139", "title": "", "text": "affirm in part and reverse in part, and remand for further proceedings. I. Carolyn Matkin was an employee of Healthsouree, a corporation that administers insurance contracts and employee benefit plans. She was a participant in and beneficiary of the benefit plan Healthsouree funded and administered for its employees. In March 1992, Matkin was diagnosed with breast cancer. She underwent a mastectomy and chemotherapy, after which her disease went into remission for more than a year. In August 1993, more cancer was discovered, for which Matkin received radiation treatment. Again, there was a period of remission. In June 1994, however, Matkin was diagnosed with the most advanced stage of breast cancer, Stage IV. Although she underwent more radiation and standard-dose chemotherapy, by September 1995, the cancer had spread to her skeletal system. Her doctors then recommended that she undergo a procedure known as high-dose chemotherapy with peripheral stem cell rescue, or HDC/ PSCR, which the doctors believed represented her best chance of survival. HDC/PSCR was described by the district court as follows: [H]igh-dose chemotherapy is similar to standard dose chemotherapy, with the difference being that the amounts of the drugs given is several times larger in the high-dose version of the treatment. Both standard and high-dose chemotherapy involve introduction into the body of highly toxic chemicals designed to slow the growth and spread of cancerous tumors or to kill the cancer cells altogether. A side effect of both versions of the treatment is that the toxic chemicals destroy not only the cancer cells but also those white blood cells that are responsible for the function of the immunosuppressive system. This side effect is even more marked in high-dose chemotherapy. Patients undergoing chemotherapy run the risk of being left with crippled immune systems, and thus at increased risk of serious illness from secondary infections. To guard against this possibility, HDC patients frequently undergo either autolo-gous bone marrow transplant or, as in this ease, peripheral stem cell rescue. PSCR involves the harvest of stem cells, which produce the immunosuppressive white blood cells, from the patient’s own blood. These cells are then frozen. After" }, { "docid": "535033", "title": "", "text": "in Williams, S.F. and Bitran, J.D., J. of Clin. Oncol. (December 1989). . See abo Williams, S.F., High-Dose Consolidation Therapy with Autologous Stem Cell Rescue in Stage IV Breast Cancer, J. of Clin. Oncol. 1824 (December 1989) (“The treatment approach of [HDCT-ABMT] ... can lead to an improved CR [complete response] rate in stage IV breast cancer.\"). . The 100 day treatment mortality rate is the percentage of patients who die as a direct result of medical treatment within the first 100 days after the commencement of treatment and not directly as result of the disease for which they are being treated. . At Duke University Medical Center, one patient out of 20 died from treatment toxicity. One patient died out of the 44 total patients enrolled in the Johns Hopkins Medical Center and Fairfax County Hospital programs. Dr. William Peters, at Duke, represented to the Director of Blue Cross North Carolina that the patient toxicity rate associated with HDCT-ABMT has decreased over time to 0 — 10%. . Blue Cross’ reliance on treatment mortality rate as a reason for denying coverage appears somewhat disingenuous, as Blue Cross, under other policies, does cover HDCT-ABMT treatment, despite its treatment mortality rate. .In support of this conclusion, Dr. Beveridge offered the example of testicular cancer. Chemotherapy is now the well-established therapy for testicular cancer. Yet, clinical investigative procedures continue.. Dr. Beveridge explained that researchers are trying to evaluate whether it is possible to (i) reduce dose toxicity and (ii) increase chemotherapy dose efficacy. . See, e.g., Reilly, 846 F.2d at 423-24 (7th Cir. 1988), where the court concluded, obiter, that an administrator's decision \"to grant or deny coverage based solely on a success ratio per se” may be arbitrary and capricious. . After ruling for plaintiff from the bench, the Court noted, obiter, that Blue Cross' coverage denial decision would probably have survived review under an arbitrary and capricious standard. Because this issue was not squarely presented, the Court concludes, on reflection, that the issue would deserve more thorough consideration in the event this decision is reversed with respect to the standard" }, { "docid": "5599944", "title": "", "text": "of patients with certainty, with certainty to say that this [HDC/SCR] is the treatment and that this is better than anything else.” Rec. Tr. Vol. 2 at 130. Dr. Frank also acknowledged on cross-examination that the lack of information from randomized clinical trials meant that he did not know with certainty what would happen to Mrs. Graham if the treatment he proposed was administered. Rec. Tr. Vol. 2 at 125-27. In addition to these statements by Mrs. Graham’s treating physician, her expert witness concluded: “We’ll need the completion of phase 3 randomized trials to know what benefit, if any, and what magnitude the benefit is to this therapy.” Meisenberg Dep. at 83. In short, there is no evidence to suggest that the treatment Mrs. Graham seeks is any more effective than the standard chemotherapy currently available to her. As such, we find that the Grahams cannot establish that Mrs. Graham will suffer irreparable harm. Thus, the district court did not abuse its discretion by denying the Grahams’ request for a mandatory preliminary injunction. We therefore Affirm the district court’s denial of the injunction. . Blue Cross & Blue Shield Mutual of Ohio is now Medical Mutual of Ohio. . There are four stages of breast cancer: Stage I, where the cancer is limited to the breast tissue and has not spread; Stage II, where the cancer has spread to the lymph glands but not metastasized; Stage III, where the tumor is present in the skin of the breast, i.e. the cancer has spread from an internal location to an external location in the breast; and Stage IV, where the cancer has spread to other parts of the body. At the time of this hearing, Mrs. Graham was at Stage II. Breast cancer patients are also classified in reference to the number of lymph nodes shown to be positive for cancer. With six nodes involved, Ms. Graham’s full classification is Stage II with four to nine positive nodes. . CORE is an organization that provides opinions on medical treatments from independent board certified specialists. . We are neither deciding the issue" }, { "docid": "2428960", "title": "", "text": "a substantial threat that she will suffer irreparable injury if the injunction is not granted; 3) that the threatened injury to her outweighs the threatened harm the injunction may cause Defendants; and 4) that granting the preliminary injunction will not disserve the public interest. United States v. Lambert, 695 F.2d 536, 539 (11th Cir.1983). Defendant does not dispute the existence of the last three elements and this Court agrees. Both parties focus on whether Plaintiff has a substantial likelihood that she will prevail on the merits. Defendant does not deny coverage on the basis that the procedure is considered experi mental. Therefore, the Court must determine if Plaintiff has a substantial likelihood of success in demonstrating that the medical procedure is “appropriate and consistent with the diagnosis in accord with accepted standards of community practice” and that the treatment “could not have been omitted without adversely affecting the insured person’s condition or quality of medical care.” The Court has considered the entire record and viewed the videotaped depositions of Dr. Hiemenz, Dr. Markman and Grace Powers Monaco. The Court finds that Plaintiff has demonstrated a substantial likelihood of success on the merits. In reaching this conclusion, the Court makes the following observations. First, the Florida Society of Clinical Oncology and the Florida Division of the American Cancer Society have stated that high-dose chemotherapy with bone marrow transplant is an appropriate treatment for ovarian cancer. Second, in his deposition Dr. Hiemenz stated that the Plaintiffs condition is not refractory and continues to respond to chemotherapy. In support of that conclusion, he points to the decreased levels of CA-125 in the Plaintiff and an improvement in her CT scans. Third, Dr. Hiemenz is a noted expert in the use of HDC-ABMT and has used this treatment for ovarian cancer several times in the past. As the Plaintiffs treating physician, he is thoroughly familiar with her medical condition and he stated that Plaintiff would most likely die within six months if she does not receive HDC-ABMT. Accordingly, Plaintiff has demonstrated a substantial likelihood of success on the merits and is entitled to a" }, { "docid": "22234642", "title": "", "text": "conflict. See Restatement (Second) of Trusts § 187 comment d; cf. Brown, 898 F.2d at 1566 (shifting the burden of showing that an interpretation was not tainted by self-interest to the fiduciary once a substantial conflict of interest is shown). With that lessened degree of deference to Blue Cross’ discretionary interpretation of the group insurance contract, we turn to review Blue Cross’ decision to deny benefits. Ill In considering the question of whether the procedures for which coverage was claimed are covered by the Blue Cross contract as amended, we must first consider the nature of the treatment for which benefits are sought. Multiple myeloma is a cancer of the blood that, although typically fatal, can be treated in different ways with varying degrees of success, all involving chemotherapy and sometimes radiation therapy. The treatment prescribed by Dr. Kenneth Anderson was explained in more detail by Dr. John A. Miller, who was also treating Doe. Dr. Miller explained that standard out-patient levels of chemotherapy provide only limited success in treating multiple myeloma. Complete remission is both “rare and short-lived.” On the other hand, high-dose chemotherapy has, according to him, achieved a high rate of success. A limitation upon the high-dose treatment, however, is imposed by the side effects that the chemotherapy has on the bone marrow. As the dosage increases, the toxic effect on the bone marrow increases, damaging and ultimately destroying it. To side-step this result, bone marrow is removed from the patient before the chemotherapy is begun, is frozen for preservation, and is later reinfused after treatment by what Dr. Miller characterized as “a simple transfusion.” Indeed, Dr. Miller stated that the entire treatment involves no new technologies. Because the bone marrow reinfused in the patient is his own, the transplant is called “autologous.” It appears to be undisputed that the autologous bone marrow transplant has been incorporated into a treatment using high-dose chemotherapy solely to protect the bone marrow from damage caused by the treatment. The transplant itself apparently provides no treatment for the cancer. Rather, the cancer is treated by the high doses of chemicals introduced" } ]

[ { "docid": "3813570", "title": "", "text": "4. Nukem incorporated and serves on the board of directors of the American Uzbekistan Chamber of Commerce in district. 5. Nukem, represented by Mr. James C. Cornell, signed the U.S. — Russia Highly Enriched Uranium agreement. For the reasons discussed below, these contacts do not give this court jurisdiction over Nukem. A. The “Government Contacts” Exception to Personal Jurisdiction The “government contacts” exception excludes from jurisdictional consideration a defendant’s contacts with federal instrumentalities. See Mallinckrodt Med. Inc. v. Sonus Pharm., Corp., 989 F.Supp. 265, 271 (D.D.C.1998). This exception has arisen from the District of Columbia’s unique character as the home of the federal government. Id. Courts have construed the exception to extend to non-resident contact with trade associations located with the District of Columbia. See Investment, Co. Inst. v. United States, 550 F.Supp. 1213 (D.D.C.1982). Application of this exception to Nukem ends consideration of several jurisdictional allegations. Any of the meetings with governmental officials would be excluded under the doctrine. See Mallinckrodt, 989 F.Supp. at 271. Courts have refused to extend this exception to embassy meetings when the non-resident defen dant was pursuing a proprietary interest. See Dooley v. United Technologies Corp., 786 F.Supp. 65, 74-76 (D.D.C.1992). Therefore, under the government contacts exception, this Court excludes from consideration meetings with governmental officials in the District of Columbia, and the signing of the bi-lateral agreement on uranium. However, the alleged meetings at the Republic of Kazakhstan Embassy will be considered. Nukem’s membership in a trade organization also qualifies as “government contacts”, under the Investment Co. Institute v. United States, 550 F.Supp. 1213 (D.D.C.1982). The Court in that case noted, “[I]t would surely come as a surprise to the members of the many trade associations having offices here that their membership counted as intrastate business for jurisdictional purposes.” Investment Co. Institute v. U.S., 550 F.Supp. 1213, 1217 & n. 6 (D.D.C.1982). The same applies here. B. D.C. Long Arm Statute World Wide has invoked the “transacting business” clause of the D.C. Long Arm statute, D.C.Code § 13-423(b). To obtain personal jurisdiction over a nonresident defendant under § 13-423(b), a plaintiff must assert" } ]

[ { "docid": "11800217", "title": "", "text": "(indicating, under a differently labeled but similar standard, that such motions should be denied unless “the evidence, together with all inferences that can reasonably be drawn therefrom is so one-sided that reasonable men could not disagree on the verdict”). To determine if a basis for personal jurisdiction exists, the court should resolve factual discrepancies in the complaint and affidavits in favor of the plaintiff. Crane v. New York Zoological Soc., 894 F.2d 454, 456 (D.C.Cir.1990). However, the court need not treat all of the plaintiffs allegations as true. United States v. Philip Morris Inc., 116 F.Supp.2d 116, 120 n. 4 (D.D.C.2000); GTE New Media Servs. v. BellSouth Corp., 199 F.3d 1343, 1349 (D.C.Cir.2000) (stating that courts should not accept bare allegations and conclusory statements). Moreover, the court “may receive and weigh affidavits and any other relevant matter to assist it in determining the jurisdictional facts.” Arista Records, Inc. v. Sakfield Holding Co. S.L., 314 F.Supp.2d 27, 30 (D.D.C.2004) (internal quotations omitted). “To establish personal jurisdiction over a non-resident, a court must engage in a two-part inquiry.” GTE New Media Servs., 199 F.3d at 1347. First, a plaintiff must show that the personal jurisdiction may be grounded in one of the several bases provided by the District of Columbia’s long-arm statute. D.C.Code § 13-423 (2001); GTE New Media Servs., 199 F.3d at 1347. That statute provides, inter alia, that personal jurisdiction exists over a person acting directly or by an agent for a claim for relief arising from the person’s (1) transacting any business in the District of Columbia; (2) contracting to supply services in the District of Columbia; (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia!;.] D.C.Code § 13-423(a). Subsection (b) qualifies the reach of the statute by" }, { "docid": "8155907", "title": "", "text": "authorized pursuant to Federal Rules of Civil Procedure 4(e) and 4(f) to look to state law to determine in what manner and under what circumstances a nonresident party can be subjected to the jurisdiction of a federal district court. See United States v. First National City Bank, 379 U.S. 378, 381, 85 S.Ct. 528, 530, 13 L.Ed.2d 365 (1965); Gatewood v. Fiat, S. p. A., 617 F.2d 820, 822 n.3 (D.C.Cir.1980). We therefore must refer to the District of Columbia long-arm statute, D.C.Code § 13-423 (1973), to determine if plaintiff has met the threshold requirement of a prima facie showing of personal jurisdiction over the Club. The District of Columbia courts have interpreted the long-arm statute’s scope to be coextensive with the limits of the due process clause. Environmental Research International, Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d 808, 810-811 (D.C.App.1976) (en banc); Rose v. Silver, 394 A.2d 1368, 1369 (D.C. App.1978). Nevertheless, a two-step analysis is required: we must first determine whether the long-arm statute permits the exercise of jurisdiction over defendant; if so, we then inquire whether the exercise of jurisdiction over defendant comports with constitutional due process requirements. Gatewood v. Fiat, supra, at 823; Aiken v. Lustine Chevrolet, Inc., 392 F.Supp. 883, 884 (D.D.C.1975). Plaintiff argues that this court may assert jurisdiction over the Club under either District of Columbia Code § 13-423(a)(3) or § 13-423(a)(4). Those sections provide: (a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s— (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; [or] (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia. These proposed jurisdictional bases will be discussed in turn. Section 13-423(a)(3) — Tortious Act and Injury" }, { "docid": "20255804", "title": "", "text": "and concern the forum.” D’Onofrio, 534 F.Supp.2d at 90 (quoting Kopff v. Battaglia, 425 F.Supp.2d 76, 81 (D.D.C.2006)). Here, EBI does not claim that HB is subject to this Court’s general jurisdiction. Specific jurisdiction requires a court to find that “(1) jurisdiction over the defendant [is] authorized by the forum’s long-arm statute, here D.C.Code § 13-423; and (2) the exercise of that jurisdiction [satisfies] the federal requirement of constitutional due process.” Id. EBI claims that § 13-423(a)(l) and (a)(4) authorize personal jurisdiction over HB. (Opp’n at 18-26.) In relevant part, the D.C. long-arm statute provides: A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s— (1) transacting any business in the District of Columbia; (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia. D.C.Code § 13-423(a)(l), (a)(4). “Section (a)(l)’s ‘transacting any business’ clause generally has been interpreted to be coextensive with the Constitution’s due process requirements and thus to merge into a single inquiry. Section (a)(4) has been construed more narrowly, however.” GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C.Cir.2000) (internal citations omitted). “[Apparently [it was] intended that the (a)(4) subsection would not occupy all of the constitutionally available space— [B]y requiring a plus factor (some other reasonable connection between the state and the defendant separate from and in addition to the in-state injury), [the drafters] made (a)(4) more restrictive.” Crane v. Carr, 814 F.2d 758, 762 (D.C.Cir.1987) (internal quotation marks omitted). Finally, § 13-423(b) makes clear that “the [defendant’s] contacts with the District of Columbia must relate to the factual circumstances giving rise to the suit in order to support ‘specific jurisdiction’^]” Koteen v. Bermuda Cablevision Ltd., 913 F.2d 973, 974-75 (D.C.Cir.1990). To satisfy the Due Process Clause, a plaintiff must show that" }, { "docid": "9384631", "title": "", "text": "the agent of the corporation or person conducting business ...” D.C.Code § 13-334(a) (1995). See also Crane v. Carr, 814 F.2d 758, 763 (D.C.Cir.1987) (\"An enterprise incorporated and even headquartered elsewhere may operate so continuously and substantially within a state that it is fair to allow anyone to sue the enterprise in that state on any claim, without regard to where the claim arose.\") (citing International Shoe Co. v. Washington, 326 U.S. 310, 318, 66 S.Ct. 154, 159, 90 L.Ed. 95 (1945)). . \"A District of Columbia court may exercise personal jurisdiction over a person domiciled in, organized under the laws of, or maintaining his or its principal place of business in, the District of Columbia as to any claim for relief.” D.C.Code Ann. § 13-422 (1995). . \"(a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s— (1) transacting any business in the District of Columbia; (2) contracting to supply services in the District of Columbia; (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia; (5) having an interest in, using, or possessing real property in the District of Columbia; (b) When jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him.\" D.C.Code Ann. § 13-423 (1995). . See Hoffman v. United Telecomm., Inc., 575 F.Supp. 1463, 1472-76 (D.Kan.1983) (finding general jurisdiction over foreign subsidiary subsidiaries in an employment discrimination class action where the in-State parent (a) advertised “a unified image to the public,\" (b) disseminated policies to its subsidiaries, some of which were mandatory; (c) had the authority to designate" }, { "docid": "4703772", "title": "", "text": "either the D.C. long-arm statute, D.C.Code § 13^423, for transacting business in the District of Columbia, or the District of Columbia’s general jurisdiction statute, D.C.Code § 13-334. 1. Specific Jurisdiction A finding of specific jurisdiction within the District is dictated by D.C.Code Ann. § 13-423(a)(l). That statute states that “[A] District of Columbia court may exercise personal jurisdiction over a person ... transacting any business in the District of Columbia.” Plaintiffs’ claims sound in tort and arise from events alleged to constitute negligence which did not take place in the District of Columbia. The Court is urged to assume jurisdiction under D.C.Code Ann. § 13^423(a)(l), the “transacting business” provision of the long-arm statute. Due Process requires that a defendant “have certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Health Communications, Inc. v. Mariner Corp., 860 F.2d 460, 462 (D.C.Cir.1988) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). Personal jurisdiction over a defendant exists when “the defendant purposefully avails [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). While “[e]ven a small amount of in-jurisdiction business activity is generally enough to permit the conclusion that a nonresident defendant has transacted business here,” Shoppers Food Warehouse v. Moreno, 746 A.2d 320, 331 (D.C.2000), it is important to remember that “[t]he Court must resolve personal jurisdiction issues ‘on a case-by-case basis.’ ” Cellutech, Inc. v. Centennial Cellular Corp., 871 F.Supp. 46, 49 (D.D.C. 1994) (quoting Envtl. Research Int’l, Inc. v. Lockwood Greene Eng’rs, Inc., 355 A.2d 808, 811 (D.C.1976)). More importantly, any claim for relief under the D.C. long-arm statute must “aris[e] from” the act or acts conferring jurisdiction over the defendant. D.C.Code § 13-423(b). This limitation is intended to exclude all claims “that do not bear some relationship to the acts in the forum state relied upon to confer jurisdiction.” Jackson v." }, { "docid": "10927911", "title": "", "text": "of the long-arm statute. Under that exception, a person or company does not subject itself to the jurisdiction of the courts of the District of Columbia merely by filing an application with a government agency, like the FDA, or by seeking redress of grievances from the Executive Branch or Congress. Naartex Consulting Corp. v. Watt, 722 F.2d 779, 787 (D.C.Cir.1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984); Freiman v. Lazur, 925 F.Supp. 14, 24 (D.D.C.1996); Environmental Research Int'l, Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d 808, 813 (D.C.1976) (en banc). “The District of Columbia’s unique character as the home of the federal government requires this exception in order to maintain unobstructed access to the in-strumentalities of the federal government.” Cellutech, Inc. v. Centennial Cellular Corp., 871 F.Supp. 46, 50 (D.D.C.1994). Furthermore, under the government contacts exception, a person or entity that has unsuccessfully petitioned the Executive Branch, an independent agency or Congress and then seeks redress before the federal or local courts in the District of Columbia is not thereby “transacting business” for purposes of the’ long-arm statute. When instituting suit for that purpose, it continues to be protected by the government contacts exception. Naartex Consulting Corp. v. Watt, 722 F.2d at 787 (citing Doe v. McMillan, 566 F.2d 713, 718 (D.C.Cir.1977)); see Lex Tex Ltd. v. Skillman, 579 A.2d at 248 n. 9; cf. Investment Company Institute v. United States, 550 F.Supp. 1213, 1217 (D.D.C.1982). Accordingly, the fact that Sonus and ImaRx sued the FDA in this jurisdiction does not subject them to jurisdiction for purposes of this patent litigation under the transacting business subsection of the long-arm statute. Moreover, even if there were some theory under which bringing the FDA litigation could be construed as “transacting business” in the District of Columbia, to establish personal jurisdiction under subsection (a)(1) of the long-arm statute, the plaintiffs’ claim itself must have arisen from the business transacted in the District of Columbia. D.C.Code § 13-423(b). See Dooley v. United Technologies Corp., 786 F.Supp. 65, 71 (D.D.C.1992). As this Court held in Cellu-tech, Inc. v. Centennial" }, { "docid": "11593412", "title": "", "text": "Long-Arm Statute and the Due Process Clause of the U.S. Constitution To establish personal jurisdiction over a non-resident, a court must engage in a two-part inquiry: A court must first examine whether jurisdiction is applicable under the state’s long-arm statute and then determine whether a finding of jurisdiction satisfies the constitutional requirements of due process. See United States v. Ferrara, 54 F.3d 825, 828 (D.C.Cir.1995). The District’s long-arm statute provides, in relevant part, that [a] District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s — (1) transacting any business in the District of Columbia; ... (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he [i] regularly does or solicits business, [ii] engages in any other persistent course of conduct, or [iii] derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia. D.C.Code Ann. § 13-423(a) (1981). A plaintiff seeking to establish jurisdiction over a non-resident under the foregoing provisions of the long-arm statute must demonstrate, pursuant to section (a)(1), that the plaintiff transacted business in the District, or show, pursuant to section (a)(4), that the plaintiff caused a tortious injury in the District, the injury was caused by the defendant’s act or omission outside of the District, and the defendant had one of the three enumerated contacts with the District. Section (a)(l)’s “transacting any business” clause generally has been interpreted to be coextensive with the Constitution’s due process requirements and thus to merge into a single inquiry. See Ferrara, 54 F.3d at 828. Section (a)(4) has been construed more narrowly, however. See Crane v. Carr, 814 F.2d 758, 762 (D.C.Cir.1987) (“The drafters of this provision apparently intended that the (a)(4) subsection would not occupy all of the constitutionally available space.... This court has explicitly noted, moreover, that (a)(4) of the D.C. long-arm statute may indeed stop short of the outer limit of the constitutional space.”). Even when the literal terms of the long-arm" }, { "docid": "18280568", "title": "", "text": "benefits of the forum state by establishing minimum contacts and that the exercise of jurisdiction would comport with notions of fair play and substantial justice. See Wiggins v. Equifax, 853 F.Supp. 500, 502 (D.D.C.1994). “Bare allegations and conclusory statements are insufficient” to establish personal jurisdiction over a defendant. Capital Bank Int’l, Ltd. v. Citigroup, Inc., 276 F.Supp.2d 72, 74 (D.D.C.2003). The plaintiff must instead “allege specific facts connecting each defendant with the forum state.” Schwartz v. CDI Japan, 938 F.Supp. 1, 7 (D.D.C.1996). A court does not have jurisdiction over the individual officers or employees of a corporation just because the court has jurisdiction over the corporation. See Quinto v. Legal Times, 506 F.Supp. 554, 558 (D.D.C.1981). In the District of Columbia, personal jurisdiction may be asserted over a defendant according to D.C.Code § 13-423(a)(4) which states, in relevant part: “A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s ... (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia.” Besides D.C.Code § 13-423(a), plaintiff also relies on the conspiracy jurisdiction doctrine to argue that this Court has personal jurisdiction over the Microsoft defendants and the Duke defendants. Under the conspiracy jurisdiction doctrine, a defendant’s contact with the forum can arise from the acts of co-conspirators within that forum. See Jin v. Ministry of State Sec. 335 F.Supp.2d 72, 78 (D.D.C.2004). However, to assert jurisdiction under the conspiracy jurisdiction doctrine, the plaintiff must make a prima facie showing of “(1) a conspiracy (2) in which the defendant participated and (3) a co-conspirator’s overt act within the forum, subject to the long-arm statute and in furtherance of the conspiracy.” Id. Further, to be entitled to jurisdictional discovery based on this doctrine, the plaintiff must specifically allege: “(1) the existence of" }, { "docid": "21952043", "title": "", "text": "adjudicatory authority to entertain a suit against a defendant without regard to the claim’s relationship vel non to the defendant’s forum-linked activity, and (2) specific jurisdiction to entertain controversies based on acts of a defendant that touch and concern the forum.” Steinberg v. Int’l Criminal Police Org., 672 F.2d 927, 928 (D.C.Cir.1981). This civil action implicates only the latter form, as there is no suggestion that any of the defendants — each of whom resides outside the District of Columbia — has a connection to the District of Columbia that would be strong enough to support general jurisdiction. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (explaining that, where a defendant’s contacts with the forum are “continuous and systematic,” the forum will have jurisdiction over any matter involving the defendant). In order to establish specific jurisdiction over a non-resident defendant in a diversity case such as this, plaintiffs must plead facts that (1) bring the case within the scope of the District of Columbia’s long-arm statute, D.C.Code § 13-423, and (2) satisfy the constitutional requirement of due process. United States v. Ferrara, 54 F.3d 825, 828 (D.C.Cir.1995); Crane v. Carr, 814 F.2d 758, 762 (D.C.Cir.1987). The District’s long-arm statute states, in pertinent part, that courts may exercise jurisdiction over any person who, acting directly or through an agent, engages in the following conduct: (1) transacts any business in the District of Columbia; (2) contracts to supply services in the District of Columbia; (3) causes tortious injury in the District of Columbia by an act or omission in the District of Columbia; or (4) causes tortious injury in the District of Columbia by an act or omission outside the District of Columbia if the person “regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia.” D.C.Code § 13 — 423(a)(1)—(4). In this case, plaintiffs’ claims against Sadiq, Anza-root, and Franklin assuredly do not arise out of any contractual or transactional" }, { "docid": "1308708", "title": "", "text": "522 (D.D.C.1971), and as recognized by the D.C. Circuit, the analyses under (a)(1) and (a)(4) are analytically distinct. See Crane v. Carr, 814 F.2d 758, 763 (D.C.Cir.1987). Under § 13-423(a)(4), personal jurisdiction can be found based on the defendant’s causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if [the defendant] regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia[.] In each of the three cases, the Court not only found that substantial revenue had been derived from the small number of sales that occurred, but as required by statute, there was no question that the injury complained of had occurred in the District of Columbia. See Masterson-Cook, 722 F.Supp. at 813; Akbar, 490 F.Supp. at 64; Liberty Mutual Insurance Company, 334 F.Supp. at 523. Plaintiff also cites two (a)(1) cases— Shoppers Food Warehouse v. Moreno, 746 A.2d 320 (D.C.2000), and Rhee Bros. v. Seoul Shik Poom, 869 F.Supp. 31 (D.D.C.1994). Although the court in Shoppers Food Warehouse found that “[e]ven a small amount of in-jurisdiction business activity is generally enough to permit the conclusion that a nonresident defendant has transacted business here,” 746 A.2d at 331, the court must determine whether there is personal jurisdiction pursuant to (a)(1) “on a case-by-case basis, noting in each the particular activities relied upon by the resident plaintiff as providing the supposed basis for jurisdiction.” Cellutech, Inc. v. Centennial Cellular Corp., 871 F.Supp. 46, 49 (D.D.C.1994) (quoting Environmental Research Intern., Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d 808, 811 (D.C.1976)). “The long-arm statute analysis is subsumed by the due process analysis expressed in the third and fourth prongs” of the (a)(1) test, COMSAT Corp. v. Finshipyards S.A.M., 900 F.Supp. 515, 521 (D.D.C.1995), and thus, “the appropriate inquiry is whether [defendant has] the requisite ‘minimum contacts’ with the District so that the exercise of personal jurisdiction would not offend ‘traditional notions of fair play and substantial justice.’ ” Material Supply Int’l, Inc. v." }, { "docid": "7769908", "title": "", "text": "with notions of fair play and substantial justice embodied in the Due Process Clause of the Constitution. In order to establish jurisdiction over the Artery defendants, none of whom is a resident of the District of Columbia, plaintiffs must demonstrate that these defendants have “transacted business” in the District within the meaning of D.C.Code § 13-423(a)(1) and that plaintiffs’ claims for relief arose from specific District of Columbia transactions. LaBrier v. A.H. Robins Co., Inc., 551 F.Supp. 53, 55 (D.D.C.1982); D.C.Code § 13-423(b). It has long been established that the transacting business clause of the District's long-arm statute grants jurisdiction to the fullest extent permissible under the Due Process Clause. See, e.g., Chase v. Pan-Pacific Broadcasting, Inc., 617 F.Supp. 1414, 1420 (D.D.C.1985); Environmental Research International, Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d 808, 810-11 (D.C.1976) (en banc). Moreover, as the District of Columbia Court of Appeals has noted, section 13-423(a)(1) requires only “some affirmative act by which the defendant brings itself within the jurisdiction and establishes minimum contacts.” Cohane v. Arpeja-California, Inc., 385 A.2d 153, 158 (D.C.Ct.App.1978). Plaintiffs allege that the Artery defendants have “transacted business” in the District within the meaning of the D.C. long-arm statute on the basis both of its direct contacts with the District and of the indirect contacts imputed to it as a result of its constructive agency or co-venturer relationship with Cafritz. The Artery defendants claim in response that personal jurisdiction cannot be premised either upon their direct contacts with the District because the so-called “government contacts” doctrine preeludes consideration of some or most of those contacts, or upon the contacts of the Cafritz defendants with the District because Artery and Cafritz had merely an arm’s length, buyer-seller relationship, not a co-venturer relationship, with each other. The Court has concluded that the contacts of the Artery defendants with the District of Columbia, directly and through the Cafritz defendants, are fully adequate to establish jurisdiction under the “transacting business” clause of the D.C. long-arm statute. Artery’s direct forum contacts include the following: (1) some of the negotiations for, and the settlement of, the assignment" }, { "docid": "1308707", "title": "", "text": "claim arose from the business transacted in the District (so-called specific jurisdiction); (3) the defendant had minimum contacts with the District; and (4) the Court’s exercise of personal jurisdiction would not offend ‘traditional notions of fair play and substantial justice.’ ” COM-SAT Corp. v. Finshipyards S.A.M., 900 F.Supp. 515, 521 (D.D.C.1995) (internal quotation marks and citation omitted). Plaintiff argues that jurisdiction exists based on defendant’s sale of its candles to a nationwide distributor, defendant Unico. (See P1.0pp. at 3). To support its contention that defendant is “transacting business” in the District of Columbia, plaintiff cites a number of cases in which this Court has found a small number of sales sufficient to establish personal jurisdiction. (See Pl.Opp. at 4-5). Plaintiff’s reliance on these cases is misplaced. Three of them involved a finding of personal jurisdiction under D.C.Code § 13-423(a)(4), rather than D.C.Code § 13-423(a)(l), see Masterson-Cook v. Criss Bros. Iron Works, 722 F.Supp. 810 (D.D.C.1989); Akbar v. New York Magazine Co., 490 F.Supp. 60 (D.D.C.1980); Liberty Mutual Insurance Company v. American Pecco Corp., 334 F.Supp. 522 (D.D.C.1971), and as recognized by the D.C. Circuit, the analyses under (a)(1) and (a)(4) are analytically distinct. See Crane v. Carr, 814 F.2d 758, 763 (D.C.Cir.1987). Under § 13-423(a)(4), personal jurisdiction can be found based on the defendant’s causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if [the defendant] regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia[.] In each of the three cases, the Court not only found that substantial revenue had been derived from the small number of sales that occurred, but as required by statute, there was no question that the injury complained of had occurred in the District of Columbia. See Masterson-Cook, 722 F.Supp. at 813; Akbar, 490 F.Supp. at 64; Liberty Mutual Insurance Company, 334 F.Supp. at 523. Plaintiff also cites two (a)(1) cases— Shoppers Food Warehouse v. Moreno, 746 A.2d 320 (D.C.2000), and Rhee Bros. v. Seoul" }, { "docid": "23438468", "title": "", "text": "any of the burdens that Congress intended, the statutory language is clear: AOL is immune from suit, and the Court therefore must grant its motion for summary judgment. III. DRUDGE’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Defendant Drudge has moved, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, for an order dismissing this action for lack of personal jurisdiction or, alternatively, to transfer it to the United States District Court for the Central District of California. In order for this Court to maintain personal jurisdiction over a nonresident defendant, jurisdiction must be proper under the District of Columbia long-arm statute and consistent with the demands of due process. United States v. Ferrara, 54 F.3d 825, 828 (D.C.Cir.1995); Crane v. Carr, 814 F.2d 758, 762 (D.GCir.1987). Plaintiffs have the burden of establishing that this Court has personal jurisdiction over defendant Drudge and alleging specific facts upon which personal jurisdiction may be based. See Cellutech Inc. v. Centennial Cellular Corp., 871 F.Supp. 46, 48 (D.D.C.1994). A. D.C. Long-Arm, Statute The only provision of the District of Columbia long-arm statute that is relevant to this ease is Section 13-423(a)(4), which provides: A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s ... ■causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the District of Columbia. D.C.Code § 13 — 423(a)(4). In order to establish personal jurisdiction under this provision a plaintiff must make a prima facie showing that (1) plaintiff suffered a tortious injury in the District of Columbia; (2) the injury was caused by the defendant’s act or omission outside of the District of Columbia; and (3) defendants had one of three enumerated contacts with the District of Columbia. Trager v. Berrie, 593 F.Supp. 223, 225 (D.D.C.1984); Akbar v. New York" }, { "docid": "9694234", "title": "", "text": "the State of New York with its principal place of business located at the Bronx Zoo in New York City. The Society does not transact business within the District. As subject matter jurisdiction in this case is based on diversity of citizenship, we look to District law to determine whether there is a basis for exercising personal jurisdiction over the Society. Crane v. Carr, 814 F.2d 758, 762 (D.C.Cir.1987). The District’s long-arm statute provides, in relevant part: (a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by agent, as to a claim for relief arising from the person’s— (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia. D.C.Code § 13-423(a) (1989). A defendant is therefore subject to the District’s long-arm statute if he causes injury here by an act committed elsewhere and, in addition, has “some other reasonable connection” with the District, such as engaging in a “persistent course of conduct” within the District. Founding Church of Scientology v. Verlag, 536 F.2d 429, 432 (D.C.Cir.1976). That connection must be such that the exercise of jurisdiction will comport not only with the statute’s requirements, but with those of the due process clause as well. Id. The constitutional test is met if the defendant’s “minimum contacts” with the District are such that subjecting it to suit would “not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)). The plaintiff has the burden of establishing a factual basis for the exercise of personal jurisdiction over the defendant. Reuber v. United States, 750 F.2d 1039, 1052 (D.C.Cir.1984). In determining whether such a basis exists, factual discrepancies appearing in the record" }, { "docid": "21952044", "title": "", "text": "long-arm statute, D.C.Code § 13-423, and (2) satisfy the constitutional requirement of due process. United States v. Ferrara, 54 F.3d 825, 828 (D.C.Cir.1995); Crane v. Carr, 814 F.2d 758, 762 (D.C.Cir.1987). The District’s long-arm statute states, in pertinent part, that courts may exercise jurisdiction over any person who, acting directly or through an agent, engages in the following conduct: (1) transacts any business in the District of Columbia; (2) contracts to supply services in the District of Columbia; (3) causes tortious injury in the District of Columbia by an act or omission in the District of Columbia; or (4) causes tortious injury in the District of Columbia by an act or omission outside the District of Columbia if the person “regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia.” D.C.Code § 13 — 423(a)(1)—(4). In this case, plaintiffs’ claims against Sadiq, Anza-root, and Franklin assuredly do not arise out of any contractual or transactional relationship involving the District. Instead, the claims here are based on alleged conduct in the nature of a tort; and because defendants’ alleged conduct occurred solely outside the borders of the District, the only potentially applicable long-arm provision is section 13-423(a)(4), which permits jurisdiction where the defendant caused tortious injury within the District by an act or omission that occurred outside the District. Courts have interpreted section 13-423(a)(4) to be more restrictive than the Due Process Clause of the Constitution-— meaning the District government has made a deliberate decision not to allow access to D.C. courts to every person who is injured here and otherwise could bring a claim for civil redress. See Crane, 814 F.2d at 762 (“The drafters of this provision apparently intended that the (a)(4) subsection would not occupy all of the constitutionally available space.”). Then-Judge Ruth Bader Ginsburg, writing for the D.C. Circuit in Crane, described subsection (a)(4) as requiring a “plus factor” by virtue of its additional requirement that the alleged tortfeasor “regularly do[ ] or solicite ] business” in" }, { "docid": "5925035", "title": "", "text": "appear to be a viable alternative forum, the residence of the plaintiffs no longer constitutes proper venue in a diversity action. See 28 U.S.C. § 1391(a). For all of the reasons given above, the exercise of personal jurisdiction over the defendant Ramsey comports with constitutional requirements. B. The District of Columbia Long-Arm Statute Having met the constitutional requirements for personal jurisdiction, the plain tiff must show that the requirements of the District of Columbia long-arm statute are met. The statute states in relevant part that: (a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia. D.C.Code § 13-423(a) (1989). The issue, then, is whether Ramsey’s contacts with the District meet the requirements of § 13-423(a)(4); that is, does Ramsey regularly do or solicit business, engage in any other persistent course of conduct, or derive substantial revenue from goods used or consumed in the District? The “substantial revenue” test is most applicable here. The District of Columbia Circuit has held that § 13-423(a)(4) is more restrictive than the due process clause, requiring a “plus factor” to “filter out cases in which the inforum impact is an isolated event and the defendant otherwise has no, or scant, affiliations with the forum.” Crane v. Carr, 814 F.2d 758 (D.C.Cir.1987). The defendant here has sufficient contacts to satisfy this “plus factor”. Some courts have held that “ ‘substantial revenue’ means enough revenue to indicate a commercial impact in the forum, such that a defendant fairly could have expected to be haled into court there. It is incorrect to equate the ‘idea of commercial impact on the forum with the narrower concept of financial gain or loss in the forum.’” Delahanty v. Hinckley, 686" }, { "docid": "11835589", "title": "", "text": "registration feature may be misplaced. See, e.g., Citigroup Inc., v. City Holding Co., 97 F.Supp.2d 549, 565 (S.D.N.Y.2000) (finding jurisdiction based on website's allowing potential customers to, inter alia, “print out an application for submission by facsimile”); Obabueki v. Int'l Bus. Machs. Corp., 99cv11262, 2001 WL 921172, at *3 (S.D.N.Y. Aug. 14, 2001) (finding jurisdiction based on website's allowing \"prospective customers [to] download an application form which can be faxed to [defendant]”). We do not reach the merits of the district court’s holding on this issue, however, because of our holding as to the second requirement. . D.C.Code § 13-423(a), in relevant part, authorizes the court to: exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's— (1) transacting any business in the District of Columbia; (2) contracting to supply services in the District of Columbia; (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia. D.C.Code § 13-423(a). . The district court determined that subsection (a)(l)’s \"transacting business\" requirement could not be satisfied by telephone or fax contacts alone. FC Inv. Group, 479 F.Supp.2d. at 39 (citing Kopff v. Battaglia, 425 F.Supp.2d 76, 79-82 (D.D.C.2006) (approximately 100 faxes insufficient); Gibbons & Co. v. Roskamp Inst., 06cv0720, 2006 WL 2506646, at *3 (D.D.C. Aug. 28, 2006) (50-75 telephone calls/emails before signing contract in Florida insufficient); Brunson v. Kalil & Co., 404 F.Supp.2d 221, 234 (D.D.C.2005) (\"limited” telephone/fax contact insufficient); Jung v. Ass’n of Am. Med. Colls., 300 F.Supp.2d 119, 131 (D.D.C.2004) (ten contacts per year insufficient); COMSAT Corp. v. Finshipyards S.A.M., 900 F.Supp. 515, 523 (D.D.C.1995) (eleven faxes/telephone calls insufficient); Rahal v. Paris Sec. Corp., 82cv1439, 1982 U.S. Dist. LEXIS 17867, at *2, *6 (D.D.C. Oct. 27," }, { "docid": "11835590", "title": "", "text": "of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia. D.C.Code § 13-423(a). . The district court determined that subsection (a)(l)’s \"transacting business\" requirement could not be satisfied by telephone or fax contacts alone. FC Inv. Group, 479 F.Supp.2d. at 39 (citing Kopff v. Battaglia, 425 F.Supp.2d 76, 79-82 (D.D.C.2006) (approximately 100 faxes insufficient); Gibbons & Co. v. Roskamp Inst., 06cv0720, 2006 WL 2506646, at *3 (D.D.C. Aug. 28, 2006) (50-75 telephone calls/emails before signing contract in Florida insufficient); Brunson v. Kalil & Co., 404 F.Supp.2d 221, 234 (D.D.C.2005) (\"limited” telephone/fax contact insufficient); Jung v. Ass’n of Am. Med. Colls., 300 F.Supp.2d 119, 131 (D.D.C.2004) (ten contacts per year insufficient); COMSAT Corp. v. Finshipyards S.A.M., 900 F.Supp. 515, 523 (D.D.C.1995) (eleven faxes/telephone calls insufficient); Rahal v. Paris Sec. Corp., 82cv1439, 1982 U.S. Dist. LEXIS 17867, at *2, *6 (D.D.C. Oct. 27, 1982) (30 telephone calls insufficient); Textile Museum v. F. Eberstadt & Co., 440 F.Supp. 30, 31-33 (D.D.C.1977) (74 mailings and one personal consultation insufficient)). . Even if their section 13-423(a)(4) argument were not waived, it is unlikely that it would be successful. Subsection (a)(4) requires the plaintiff to establish that the defendant “regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District.” “Regular” telephone calls from Cruden to Ei-senberg in the District do not suffice. See supra note 8. . Eisenberg and FCIG now claim they intended to base their “conspiracy jurisdiction” argument on subsection (a)(3). See Appellants' Br. 25. Subsection (a)(3) allows for personal jurisdiction over any defendant who, either directly or through an agent, \"causfes] tortious injury in the District of Columbia by an act or omission in the District of Columbia.\" D.C.Code § 13-423(a)(3). Whether their “conspiracy” jurisdiction claim is based on subsection (a)(1), as the district court assumed, or subsection (a)(3), as they" }, { "docid": "16464056", "title": "", "text": "United Technologies Corp., 786 F.Supp. at 71; LaBrier v. A.H. Robins Co., Inc., 551 F.Supp. 53 (D.D.C.1982). “The claim itself must have arisen from the business transacted in the District of Columbia or there is no jurisdiction.” Novak-Canzeri v. Al Saud, 864 F.Supp. at 206. 1. Long-Arm Jurisdiction Based on Contacts with the Federal Government Plaintiff first asserts that the defendants can be found to have “transacted business” in this jurisdiction under Section 13-423(a)(l) as a result of their contacts with the federal government both through their general lobbying activities and by willfully submitting false reports to FERC. See Plaintiffs Memorandum in Opposition to the Columbia Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction and Related Grounds (“PL’s Colum. Opp.”) at 6. First, the Court rejects plaintiffs claim that any of the defendants availed themselves of the Court’s jurisdiction as a result of lobbying activities in which they may have engaged. The District of Columbia is the Nation’s capital. Because it is vital that all citizens from all parts of the country have unfettered access to petition their government, the courts of this jurisdiction have long recognized “a government contacts” exception to the “transacting business” provision of the long-arm statute. Under that exception, a person or company does not subject itself to the jurisdiction of the courts of the District of Columbia merely by filing an application with a government agency, or by seeking redress of grievances from the Executive Branch or the Congress. See Naartex Consulting Corp. v. Watt, 722 F.2d 779, 787 (D.C.Cir.1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984); Freiman v. Lazur, 925 F.Supp. 14, 24 (D.D.C.1996); Environmental Research Int’l., Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d at 813. “The District of Columbia’s unique character as the home of the federal government requires this exception in order to maintain unobstructed access to the instrumentalities of the federal government.” Cellutech, Inc. v. Centennial Cellular Corp., 871 F.Supp. 46, 50 (D.D.C.1994). See also Mallinckrodt Medical, Inc. v. Sonus Pharmaceuticals, Inc. 989 F.Supp. 265, 271 (D.D.C.1998). The Columbia Defendants acknowledge that Nisource, Columbia" }, { "docid": "23438469", "title": "", "text": "of the District of Columbia long-arm statute that is relevant to this ease is Section 13-423(a)(4), which provides: A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s ... ■causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the District of Columbia. D.C.Code § 13 — 423(a)(4). In order to establish personal jurisdiction under this provision a plaintiff must make a prima facie showing that (1) plaintiff suffered a tortious injury in the District of Columbia; (2) the injury was caused by the defendant’s act or omission outside of the District of Columbia; and (3) defendants had one of three enumerated contacts with the District of Columbia. Trager v. Berrie, 593 F.Supp. 223, 225 (D.D.C.1984); Akbar v. New York Magazine Co., 490 F.Supp. 60, 63 (D.D.C.1980). Plaintiffs must satisfy all three requirements and also establish minimum contacts within the confines of due process before the Court can exercise personal jurisdiction over defendant Drudge. It is undisputed that the Drudge Report transmission in question was written, published and transmitted by defendant Drudge from his computer located in Los Angeles, California. It is also undisputed that the tortious injury caused by defendant Drudge’s act of transmitting the report was suffered by the Blumenthals in the District of Columbia. The only question before this Court therefore is whether defendant Drudge (1) regularly does or solicits business in the District of Columbia, or (2) derives substantial revenue from goods used or consumed or services rendered in the District, or (3) engages in any other persistent course of conduct here. See D.C.Code § 13-423(a)(4). Justice Ginsburg in Crane v. Carr has described these as the “plus factors,” factors that demonstrate some “reasonable connection” between the jurisdiction in which the court sits “separate from and in addition to” the injury" } ]

[ { "docid": "13992144", "title": "", "text": "DUHÉ, Circuit Judge: In this 42 U.S.C. § 1983 case, Appellant Lillian Freeman challenges the district court’s entry of summary judgment granting Officer John Jennings and Detective George Saidler qualified immunity. We affirm. BACKGROUND This is the second time we have entertained an appeal from the district court’s grant of summary judgment in this matter. In Freeman I we reversed and remanded to the district court so that it could consider the affidavit of Appellant Freeman’s expert witness, Ray Hildebrand. On remand, the district court did so and again granted summary judgment to Detective Saidler and Officer Jennings ruling that they were entitled to qualified immunity. STANDARD OF REVIEW We review a grant of summary judgment de novo, viewing the facts and inferences in the light most favorable to the party opposing the motion. See Hall v. Gillman, Inc., 81 F.3d 35, 36-37 (5th Cir.1996). Summary judgment is appropriate if the record discloses “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); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In order to prevail in the instant ease, Freeman must demonstrate that a genuine issue of material fact exists as to whether the Appellees knowingly provided false information to secure the arrest warrants or gave false information in reckless disregard of the truth. See Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Since we must draw all disputed inferences in the Appellant’s favor, we must disregard any such properly contested statements in the affidavits and then determine whether the warrant would establish probable cause without the allegedly false information. See id. Appellant must then demonstrate an issue of material fact as to whether any reasonably competent officer possessing the information that each officer had at the time he swore his affidavit could have concluded that a warrant should issue. See Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). We must" } ]

[ { "docid": "9874287", "title": "", "text": "section 1983 excessive force claim could proceed; but because Williams has not argued that issue in his brief, it is waived on appeal. See United States v. Mullin, 178 F.3d 334, 340 n. 1 (5th Cir.1999). III. Official Immunity and Claims Under State Law As with the section 1983 false arrest/false imprisonment claim, the resolution of Haggerty's remaining state law claims, false imprisonment and malicious prosecution, turns on whether a reasonable officer in Williams's position could have reasonably believed he had probable cause to order the arrest of Haggerty. See Villegas v. Griffin Industries, 975 S.W.2d 745, 754 (Tex.App.-Corpus Christi 1998, pet. denied) (stating that whether the imprisonment was without authority of law \"depends on whether the officers had probable cause to effect an arrest\"); Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex.1997) (listing \"absence of probable cause for the proceeding\" as an element of malicious prosecution). \"Texas law of official immunity is substantially the same as federal qualified immunity law.\" Wren v. Towe, 130 F.3d 1154, 1160 (5th Cir.1997). We therefore reverse the denial of summary judgment based on official immunity from Haggerty's remaining state law claims for the same reasons that we reverse the denial of summary judgment on the section 1983 false arrest/false imprisonment claim. Conclusion For the reasons stated herein, we AFFIRM the denial of summary judgment with respect to the section 1983 excessive force claim and REVERSE the denial of summary judgment with respect to the section 1983 false arrest/false imprisonment and the state law false imprisonment and malicious prosecution claims. We also order that Haggerty's section 1983 malicious prosecution claim be dismissed. AFFIRMED in part; REVERSED in part. . Haggerty’s petition does not clearly define his claims. His claims consisted of violations of 42 U.S.C. § 1983 and false imprisonment, malicious prosecution, and assault and battery, but Haggerty did not define his § 1983 claims in detail or clearly differentiate between his § 1983 and state law claims. For instance, in Haggerty’s response to Williams's motion for summary judgment, Haggerty recounted the allegations in his petition, declaring that Williams had \"purposely deprived" }, { "docid": "61272", "title": "", "text": "to impute to Officers Larsen (and Mata) the particular allegations against Officer DeLaPaz, citing Grandstaff v. City of Borger, 767 F.2d 161, 168 (5th Cir.1985), does not comport with the heightened pleading standard applicable in cases involving qualified immunity defenses. B. State Law Malicious Prosecution Claim Officers Larsen and Mata assert that any federal cause of action for malicious prosecution by DeLeon is foreclosed by circuit precedent. See Castellano v. Fragozo, 352 F.3d 939 (5th Cir.2003) (en banc). His malicious prosecution claim, however, is founded in state law, to which Castellano is inapplicable. Because the Officers have not briefed state law, we decline to rule on an inadequately briefed issue. CONCLUSION Based on the foregoing discussion, this court REVERSES the district court’s denial of immunity to Officers Larsen and Mata for DeLeon’s false arrest and detention claims, and we REMAND WITH INSTRUCTIONS TO DISMISS these claims. The appeal is DISMISSED insofar as it relates to the Officers’ inadequately briefed challenge to the sufficiency of pleading of DeLeon’s state law claims. REVERSED IN PART, REMANDED IN PART, and DISMISSED IN PART. Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . We take as true the facts alleged by DeLeon’s Complaint, see R. at 86-100. . Although Officers Larsen and Mata do not appear to appeal directly the district court’s denial of their Rule 7(a) motion, the district court should have ordered a Rule 7(a) reply in this case. As we have consistently held, “trial courts ought routinely require plaintiffs to file a reply under [Rule] 7(a) to qualified immunity defenses.” Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.1999). Despite the district court’s error, we need not remand this case for a Rule 7(a) reply as we are convinced, especially after oral argument, that DeLeon has pled his \"best case.” see Morin, 77 F.3d at 121. . Erubiel Cruz, et al. v. Mark DeLaPaz, et al., Civil Action No. 3:02-CV-0649-K, on appeal to this Court in" }, { "docid": "22041821", "title": "", "text": "district court dismisses under § 1915(d) a complaint \"that merely repeats pending or previously litigated claims.” Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir.1988); see also Denton v. Hernandez, 504 U.S. 25, 30, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992) (recognizing Congress's concern that \"a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits”) (quotation omitted). . As these issues do not break neatly into categories without overlap, we intermingle them with our discussion of Cato's arguments on appeal. . Cato suggests no other statutory sources of waiver on appeal. . We also hold that she cannot do so, because it is absolutely clear that the FTCA provides no basis for waiver on any of the theories for monetary recovery that Cato offers on appeal. See infra at 1109-10 (alleged failures of the Congress to discharge duties are within the discretionary function which the FTCA excepts from the limited waiver of sovereign immunity); and at 1110— 11 (no waiver of sovereign immunity for claim against the United States under the Thirteenth Amendment). However, as we shall discuss in Part VI, infra at 1111, the United States has waived sovereign immunity in claims for non-monetary relief in the Administrative Procedures Act (APA), 5 U.S.C. § 702, but Cato's theories fail on other grounds. .The government relies on the general statute of limitations in claims against the United States, which is six years, 28 U.S.C. § 2401(a), to argue that the court has no jurisdiction to consider claims for historical events, such as the wrongs upon which Cato sues, that occurred during times prior to the Civil War of 1861-1865. See, e.g., Japanese War Notes Claimants Association of the Philippines, Inc. v. United States, 373 F.2d 356, 358, 178 Ct.Cl. 630, cert. denied, 389 U.S. 971, 88 S.Ct. 466, 19 L.Ed.2d 461 (1967); Hohri v. United States, 586 F.Supp. 769 (D.D.C.1984), aff'd, 847 F.2d 779 (D.C.Cir.1988), cert. denied, 488 U.S. 925, 109 S.Ct. 307, 102 L.Ed.2d 326 (1988). While this" }, { "docid": "21002545", "title": "", "text": "Plaintiffs Opp. at 16; O’Driscoll Declaration If 8. In support of this contention, plaintiff points out that TWA proffers no evidence that any TWA employee actually took a blood or urine test administered by TWA prior to February 1987. Plaintiff’s Opp. at 16-17. When asked in a deposition whether he knew “of any single incident or instance when a blood test was given” prior to February 1987 to determine whether an employee was under the influence of alcohol, James R. Cato, TWA’s Staff Vice-President of Labor Relations-Ground, responded: I can’t tell you — I know there are instances where employees were requested to take blood tests or breath analyzers. I do not know — I do not recollect one way or the other, whether they took them. But I know there were instances where we offered and intended to test, if they were willing. Cato Deposition at 45-46, Exhibit M to Cato Affidavit (emphasis added). In his affidavit, Cato reiterates that “in some instances” TWA requested employees to take a test to establish whether the employee was working under the influence of drugs or alcohol. Cato Affidavit ¶ 9. Plaintiff argues, however, that Cato’s testimony “cannot establish a practice of disciplining employees for failure to take a test prior to the implementation of the February 1987 program.” Plaintiff’s Opp. at 18 n. 4; see also IAM’s Rule 108(h) Statement of Facts in Dispute in Opposition to TWA’s Motion to Dismiss, or Alternatively, for Summary Judgment ¶ 2. The affidavit of Ralph P. Craviso filed by TWA refers only to the “opportunity” given to TWA employees to take “breathalyzer tests” to exonerate themselves from charges of working under the influence of drugs or alcohol. Craviso Affidavit ¶ 15. Plaintiff stresses that TWA now imposes “mandatory” testing on its employees in that refusal to take a test subjects them to discharge. Plaintiffs Opp. at 18; Plaintiff IAM’s Supplemental Exhibit to be Attached to the Declaration of A1 Calhoun. Plaintiff also points out that the General Counsel of the National Labor Relations Board concluded that implementation of drug testing is a mandatory subject" }, { "docid": "2194153", "title": "", "text": "of Cato’s disciplinary charges. The issue now is whether the findings of the disciplinary board were supported by “some evidence.” The Hill standard is minimally stringent. The Court stated that “the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Id. at 455-56, 105 S.Ct. at 2774-75 (emphasis added). Although characterizing the evidence in Hill as meager, the Court found the record “not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary.” Id. at 457, 105 S.Ct. at 2775. In examining the record, the court is not to make its own assessment of the credibility of witnesses or reweigh the evidence. Id. at 455, 105 S.Ct. at 2774. Nonetheless, there must be some indicia of reliability of the information that forms the basis for prison disciplinary actions. See Mendoza v. Miller, 779 F.2d 1287, 1295 (7th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 2251, 90 L.Ed.2d 697 (1986); Kyle v. Hanberry, 677 F.2d 1386, 1390-91 (11th Cir.1982). Here the only evidence implicating Cato was the uncorroborated hearsay statement of a confidential informant. The defendants argue that the informant’s reliability was confirmed by a polygraph test that supported the informant’s veracity, and by Special Agent Pickett’s assertion to Captain Calderon that the informant was truthful. The informant’s reliability, however, is not the critical issue. He only knew what he had been told by Johnson. Johnson was the only person who knew whether Cato was involved. The reliability of Johnson’s statements was not enhanced by the results of his polygraph examination. Moreover, Johnson never told anyone that Cato actually knew of the plot; he only told the informant that Cato would supply the metal stock. While we remain faithful to the Supreme Court’s admonition that we should not reweigh evidence or judge the credibility of witnesses, the only evidence in this case implicating Cato is an inmate’s statement that was related to prison officials through a confidential informant who had no first hand knowledge of any relevant statements or actions by" }, { "docid": "9874286", "title": "", "text": "U.S. 194, 121 S.Ct. 2151, 2159-60, 150 L.Ed.2d 272 (2001). We conclude that Williams is entitled to qualified immunity from Haggerty's false arrest/false imprisonment claim under section 1983. B. Malicious Prosecution Under Section 1983 Subsequent to the district court's denial of Williams's summary judgment, and to when the briefs in this appeal were filed, we held that \"`malicious prosecution' standing alone is no violation of the United States Constitution, and that to proceed under 42 U.S.C. § 1983 such a claim must rest upon a denial of rights secured under federal and not state law.\" Castellano v. Fragozo, 352 F.3d 939, 942 (5th Cir.2003) (en banc). Thus, we order that Haggerty's 1983 section malicious prosecution claim be dismissed. C. Excessive Force Claim Under Section 1983 Williams briefly argues that he is entitled to official immunity on a state law excessive force claim. However, the record does not indicate that Haggerty brought a state law excessive force claim, and the district court made no ruling on such a claim. The district court did hold that Haggerty's section 1983 excessive force claim could proceed; but because Williams has not argued that issue in his brief, it is waived on appeal. See United States v. Mullin, 178 F.3d 334, 340 n. 1 (5th Cir.1999). III. Official Immunity and Claims Under State Law As with the section 1983 false arrest/false imprisonment claim, the resolution of Haggerty's remaining state law claims, false imprisonment and malicious prosecution, turns on whether a reasonable officer in Williams's position could have reasonably believed he had probable cause to order the arrest of Haggerty. See Villegas v. Griffin Industries, 975 S.W.2d 745, 754 (Tex.App.-Corpus Christi 1998, pet. denied) (stating that whether the imprisonment was without authority of law \"depends on whether the officers had probable cause to effect an arrest\"); Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex.1997) (listing \"absence of probable cause for the proceeding\" as an element of malicious prosecution). \"Texas law of official immunity is substantially the same as federal qualified immunity law.\" Wren v. Towe, 130 F.3d 1154, 1160 (5th Cir.1997). We therefore reverse" }, { "docid": "2194150", "title": "", "text": "28, 1981, Cato’s disciplinary rehearing was held before Program Administrator O’Shaughnessy, Correctional Counselor Kernan, and Correctional Counselor Feh-renkamp. The plaintiff was once again found guilty. The tide turned after Cato filed a petition for a writ of habeas corpus in state court. At that point it was stipulated that the disciplinary action would be vacated and that correctional officers could refile the charges if Cato were permitted to take a polygraph examination. Pursuant to the stipulation Cato submitted to a polygraph test, which supported his claim that he was not involved in the plot to take hostages. On the basis of the test results, Cato was released into the general population on February 23, 1982. Cato brought this 42 U.S.C. § 1983 action, alleging a deprivation of liberty without procedural due process. On November 17, 1985, the defendants filed a motion for summary judgment, which was granted on February 4, 1986. The court ruled, inter alia, that the disciplinary committee’s finding that the plaintiff had violated a disciplinary rule was supported by a sufficient quantum of evidence. Excerpt of Record at 356. The plaintiff timely filed a notice of appeal. II. DISCUSSION In Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), the Supreme Court held that the findings of a prison disciplinary board that result in the loss of a protected liberty interest must be supported by “some evidence in the record.” Id. at 454, 105 S.Ct. at 2773. The defendants concede that the State of California has created a liberty interest, in not being subject to administrative segrega tion, of which Cato was deprived. See Tomsaint v. McCarthy, 801 F.2d 1080, 1098 (9th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). The State, in depriving the plaintiff of that liberty interest, must do so on the basis of “some evidence in the record.” Otherwise procedural due process under the circumstances of this case is not satisfied. Hill, 472 U.S. at 455, 105 S.Ct. at 2774. Cato argues that the “some evidence” standard requires evidence possessing some indication of reliability," }, { "docid": "22041803", "title": "", "text": "must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987). We do not read the district court’s order as dismissing Cato’s complaint on account of doubts about her ability to succeed. Rather, the court determined that Cato had not met her burden of showing a waiver of sovereign immunity, and that her claims were not legally cognizable because they raise “a ‘policy question’ which the judiciary ‘has neither the authority nor wisdom to address.’ ” (Order Dismissing Complaint, quoting Fullilove v. Klutznick, 448 U.S. 448, 537, 100 S.Ct. 2758, 2805, 65 L.Ed.2d 902 (1980) (Stevens, J., dissenting)). For these reasons, the court concluded that while Cato may be justified in seeking redress for past and present injustices from the Congress, the court lacked jurisdiction to grant the requested relief. As Cato’s complaint neither identifies any constitutional or statutory right that was violated, nor asserts any basis for federal subject matter jurisdiction or waiver of sovereign immunity, it was properly dismissed. Section 1915(d) authorizes a court to review a complaint that has been filed in forma pau-peris, without paying fees and costs, on its own initiative and to decide whether the ac tion has an arguable basis in law before permitting it to proceed. The critical question, however, for the district court as for us, is whether leave to amend should have been given. Cato was not represented by counsel in the district court, but is here; we therefore have the benefit of counsel’s suggestions for curative amendments, as well as those hypothesized by the district court. Accordingly, we turn to Cato’s disagreements with the court’s ruling and to the possibilities for amendment that she suggests on appeal. Ill Cato first contends that we should not affirm the district court’s dismissal on statute of limitations grounds. Strictly speaking, we don’t. The dispositive question is whether her theories of liability are barred by sovereign immunity, or otherwise fall outside the" }, { "docid": "22041801", "title": "", "text": "addition, she seeks an apology from the United States. The complaint itself does not refer to any basis upon which the United States might have consented to suit. However, because Cato was proceeding pro se, the district court construed her papers liberally and surveyed the most likely authorities for waiver, but found them unavailing. Specifically, the court noted that the waiver of sovereign immunity in tort actions against the government in the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2674, is limited to claims accruing on and after January 1, 1945, id. at § 1346(b); and that the Civil Rights Act, 42 U.S.C. § 1981(a), applies to individual federal officials but not to the United States. The court also observed that while Cato’s action appears to be patterned after the reparations authorized by Congress for individuals of Japanese ancestry who were forced into internment camps during World War II, those reparations were not awarded as damages in court but rather were enacted into law in the Civil Liberties Act of 1988, codified at 50 App. U.S.C. § 1989a(a). The court concluded that Cato’s claims are barred by sovereign immunity, and that the appropriate forum for policy questions of the sort raised by her complaint is Congress, rather than the courts. Cato timely appealed. II First, Cato contends that dismissal of her action was premature in that she was given no opportunity to be heard on the adequacy of her complaint, or to amend. She also argues that the complaint should not have been dismissed merely because the court has doubts that the plaintiff will prevail. A district court may, in its discretion, dismiss an in forma pauperis complaint “if satisfied that the action is frivolous or malicious.” 28 U.S.C. § 1915(d); Denton, 504 U.S. at 33, 112 S.Ct. at 1733-34. A complaint is frivolous within the meaning of § 1915(d) if it lacks an arguable basis either in law or in fact. Id. at 31,112 S.Ct. at 1733 (quoting Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989)). A pro se litigant" }, { "docid": "8378510", "title": "", "text": "WIDENER, Circuit Judge: Carmichael was convicted in 1981 of charges relating to an absentee ballot vote buying scheme in the 1980 Democratic primary election in Dillon County, South Carolina, and of obstruction of justice in connection with the grand jury investigation of the election. The convictions were affirmed on appeal, United States v. Carmichael, 685 F.2d 903 (4th Cir.1982), and a petition for a writ of certiorari to the Supreme Court was denied. A motion for a new trial on the ground of after discovered evidence was filed in March 1983 and denied. It is the denial of that motion that is the subject matter of this appeal. Carmichael claims the motion should have been granted on its merits and that the trial judge should have disqualified himself. We affirm. At a hearing on the motion for a new trial, Carmichael presented testimony which he claimed showed after discovered evidence to the effect that he had been mistakenly identified as a participant in a conversation allegedly crucial to his conviction. Sammy Lee Cato, a witness at the original trial, had testified originally that he heard Carmichael discuss vote buying with Sheriff Roy Lee (who pleaded guilty to charges of conspiracy to buy votes). At the hearing on the new trial motion, Cato testified that he presently remembered more facts about the political picnic at Carmichael’s lake cabin at which he had heard talk of vote buying, and specifically recalled that Carmichael had left that party early. Cato’s testimony upon the motion for a new trial was that he presently did not know who were the participants in the conversation he had earlier overheard but that it could not have been Carmichael for Carmichael was not there. Other witnesses also testified that Carmichael had left the party early. One even strongly inferred that he himself had made the overheard statement. The district court heard all the testimony Carmichael and the government offered on the subject of Cato’s recantation and found Cato had been the object of extensive persuasive efforts by Carmichael and Carmichael’s associates. Beginning in November 1982, Carmichael and his" }, { "docid": "608445", "title": "", "text": "for example, the Supreme Court has indicated that proving deliberate indifference usually requires a plaintiff to identify a pattern of similar constitutional violations, but Brown did not point to any similar incidents, much less a pattern of them. For this reason alone, summary judgment was appropriate. III. CONCLUSION Because genuine issues of material fact preclude summary judgment for Officer Lynch on Lon Brown’s § 1983 claims of unlawful arrest and excessive force, we REVERSE the district court as to these claims and REMAND for further proceedings consistent with this opinion. We AFFIRM the court’s summary judgment with respect to Brown’s claims against Chief Whitehorn and the City of Shreveport. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . A high crime area, according to Officer Lynch and Cpl. Flores. . Brown was released on bond the next morning. The criminal charges against him were dismissed. . Because we construe all facts “in the light depicted by the videotape” and, when inconclusive, in the light most favorable to the nonmoving party, the following is a distillation of Brown’s account, as corroborated (or at least not challenged) by the audio and video evidence. .Although Brown does not discuss in his brief the content of these mutterings, he testified in his deposition that he was accusing Officer Lynch of routinely harassing innocent people in the neighborhood. . Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir.2012). . FedJRXiv.P. 56(a). . Poole, 691 F.3d at 627 (citing Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.2000)). . Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir.2011) (quoting Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). . Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.2008). . Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir.2000) (citing Williams v. Bramer, 180 F.3d 699, 702 (5th Cir.1999)). . Brumfield, 551 F.3d at 326. . Pearson v." }, { "docid": "2194149", "title": "", "text": "Johnson, the informant asserted, merely identified Cato as the source of the metal stock. Cato and Johnson were immediately placed in administrative segregation. At that point Cato was told of the pending investigation and certain polygraph tests were initiated. The confidential informant submitted to a polygraph test, which was inconclusive with respect to Cato’s involvement. Johnson, who denied any knowledge of the plan, in his polygraph test tested deceptive with respect to his denial of his involvement in the plot, and inconclusive with respect to his denial of knowledge of Cato’s involvement. Cato’s requests for a polygraph test were denied. His request for an investigative employee to assist him in defending the charges was similarly denied. On April 3, 1981, Program Administrator Martin conducted the plaintiff’s disciplinary hearing. Cato was found guilty of an attempt to take hostages, and this finding was upheld on administrative appeal. Martinez, Assistant Director of Appeals Services, subsequently rescinded this disciplinary action and granted Cato a rehearing based on the failure to assign the plaintiff an investigative employee. On August 28, 1981, Cato’s disciplinary rehearing was held before Program Administrator O’Shaughnessy, Correctional Counselor Kernan, and Correctional Counselor Feh-renkamp. The plaintiff was once again found guilty. The tide turned after Cato filed a petition for a writ of habeas corpus in state court. At that point it was stipulated that the disciplinary action would be vacated and that correctional officers could refile the charges if Cato were permitted to take a polygraph examination. Pursuant to the stipulation Cato submitted to a polygraph test, which supported his claim that he was not involved in the plot to take hostages. On the basis of the test results, Cato was released into the general population on February 23, 1982. Cato brought this 42 U.S.C. § 1983 action, alleging a deprivation of liberty without procedural due process. On November 17, 1985, the defendants filed a motion for summary judgment, which was granted on February 4, 1986. The court ruled, inter alia, that the disciplinary committee’s finding that the plaintiff had violated a disciplinary rule was supported by a sufficient quantum" }, { "docid": "2194148", "title": "", "text": "SNEED, Circuit Judge: James R. .Cato, a California state prisoner at the time of this suit, appeals the district court’s summary judgment in favor of Ruth Rushen, Director of California’s Department of Corrections, and fourteen other defendants employed at San Quentin state prison. Cato’s suit, brought under 42 U.S.C. § 1983, alleged that his placement in administrative segregation violated his procedural due process rights because it was based on uncorroborated hearsay statements of a confidential informant. We reverse and remand. I. FACTS AND PROCEEDINGS BELOW On March 9, 1981, a confidential informant told Correctional Captain Arthur Calderon of a plan to take hostages to effect escape from the San Quentin state prison. Cato, Johnson, and five other inmates were implicated by the informant in the plot. The informant, who worked in the prison laboratory, said that Johnson asked him to make seven knives out of metal stock to be provided by appellant Cato, who worked in the industries area. The informant asserted that Johnson did not specifically tell him that Cato knew of the plot; Johnson, the informant asserted, merely identified Cato as the source of the metal stock. Cato and Johnson were immediately placed in administrative segregation. At that point Cato was told of the pending investigation and certain polygraph tests were initiated. The confidential informant submitted to a polygraph test, which was inconclusive with respect to Cato’s involvement. Johnson, who denied any knowledge of the plan, in his polygraph test tested deceptive with respect to his denial of his involvement in the plot, and inconclusive with respect to his denial of knowledge of Cato’s involvement. Cato’s requests for a polygraph test were denied. His request for an investigative employee to assist him in defending the charges was similarly denied. On April 3, 1981, Program Administrator Martin conducted the plaintiff’s disciplinary hearing. Cato was found guilty of an attempt to take hostages, and this finding was upheld on administrative appeal. Martinez, Assistant Director of Appeals Services, subsequently rescinded this disciplinary action and granted Cato a rehearing based on the failure to assign the plaintiff an investigative employee. On August" }, { "docid": "22041820", "title": "", "text": "do right as she sees it, we conclude that the district court did not abuse its discretion in dismissing both complaints with prejudice pursuant to § 1915(d). AFFIRMED. . Since Cato was the only named individual to sign the complaint and the in forma pauperis declaration in No. 94-17102, and Johnson the only such plaintiff in her action (No. 94-17104), the district court dismissed the other plaintiffs as a non-attorney may appear only in her own behalf. C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir.1987). Both Cato and Johnson are represented by counsel on appeal. . The court's order dismisses the complaint with prejudice, but provides that it \"does not foreclose plaintiff from refiling her action as a paid complaint.” Both plaintiffs had previously filed in forma pauperis complaints with the same allegations, which had previously been dismissed pursuant to § 1915(d) by different judges. The district court held that this provided an independent ground for dismissal of Cato's complaint. We agree. There is no abuse of discretion where a district court dismisses under § 1915(d) a complaint \"that merely repeats pending or previously litigated claims.” Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir.1988); see also Denton v. Hernandez, 504 U.S. 25, 30, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992) (recognizing Congress's concern that \"a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits”) (quotation omitted). . As these issues do not break neatly into categories without overlap, we intermingle them with our discussion of Cato's arguments on appeal. . Cato suggests no other statutory sources of waiver on appeal. . We also hold that she cannot do so, because it is absolutely clear that the FTCA provides no basis for waiver on any of the theories for monetary recovery that Cato offers on appeal. See infra at 1109-10 (alleged failures of the Congress to discharge duties are within the discretionary function which the FTCA excepts from the limited waiver of sovereign immunity);" }, { "docid": "22041819", "title": "", "text": "sovereign immunity in suits requesting non-monetary relief in the Administrative Procedures Act (APA), 5 U.S.C. § 702 (providing that in a case seeking “other than money damages” a suit shall not be dismissed “on the ground that it is against the United States”). She seeks an acknowledgment of discrimination and an apology from the United States. For reasons we have already explained, however, Cato lacks standing to seek relief premised on the stigmatizing injury of discrimination in general. Allen, 468 U.S. at 754-756, 757, n. 22, 104 S.Ct. at 3326-3327, n. 22. As the district court indicated, the legislature, rather than the judiciary, is the appropriate forum for this relief. Accordingly, her requests for non-monetary relief were properly dismissed. VII As the United States has not waived its sovereign immunity with respect to any of Cato’s theories of relief that might fall within the Federal Tort Claims Act or any other source that we can identify, and under well-established principles Cato lacks standing to pursue claims in court arising out of the government’s failure to do right as she sees it, we conclude that the district court did not abuse its discretion in dismissing both complaints with prejudice pursuant to § 1915(d). AFFIRMED. . Since Cato was the only named individual to sign the complaint and the in forma pauperis declaration in No. 94-17102, and Johnson the only such plaintiff in her action (No. 94-17104), the district court dismissed the other plaintiffs as a non-attorney may appear only in her own behalf. C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir.1987). Both Cato and Johnson are represented by counsel on appeal. . The court's order dismisses the complaint with prejudice, but provides that it \"does not foreclose plaintiff from refiling her action as a paid complaint.” Both plaintiffs had previously filed in forma pauperis complaints with the same allegations, which had previously been dismissed pursuant to § 1915(d) by different judges. The district court held that this provided an independent ground for dismissal of Cato's complaint. We agree. There is no abuse of discretion where a" }, { "docid": "8378513", "title": "", "text": "by the false testimony and was unable to meet it or did not know of its falsity until after the trial. While we are of opinion that the district court reached the correct result in its opinion on each of the requirements of Wallace, we will dwell on only the first of them in brief detail. The failure to meet any of the requirements is fatal. United States v. Johnson, 487 F.2d 1278 (4th Cir.1973). As stated, the district court found that it was not reasonably satisfied that the testimony given by Cato at Carmichael’s trial was false. In making this factual finding, it saw the witnesses and heard them testify. It credited, for example, the testimony of one Blitzer, the first of several attorneys who represented Cato with respect to his recantation and the hearing on a motion for a new trial. Blitzer testified that, at a meeting in Washington, D.C. which went on for six hours, Carmichael and others kept suggesting to Cato, who is described by Carmichael’s attorneys as semi-literate, that he (Cato) had made a mistake in his trial testimony, but Cato throughout that meeting stood fast to his position that he had told the truth at the trial, and only conceded that he might have been mistaken about the particular occasion at which he overheard Carmichael’s remark. Carmichael recommended at least some, and paid for all, of the various attorneys representing Cato with respect to the motion for a new trial. Carmichael paid Cato money for expenses and time in connection with his recantation, which admittedly was in excess of -$1100 and possibly was in excess of several thousand dollars. Cato admitted he received $480 on one occasion, at least $350 on two or more occasions, and that he was paid on six occasions. Additionally, Carmichael paid Cato’s sister’s expenses on all of the trips leading up to Cato’s affidavit. Meeting after meeting was held with Cato before he agreed to recant. The witnesses called to corroborate Cato’s recantation were colleagues or allies of Carmichael. For example, Gerald Turner had been convicted of participation in" }, { "docid": "4398509", "title": "", "text": "thereby impaired its ability to provide counseling and referral services. Dwivedi, 895 F.2d at 1526 also says that a fair housing agency need only show \"deflection of the agency’s time and money from counseling to legal efforts directed against discrimination” to establish standing. . See also Pomeroy v. Merritt Plaza Nursing Home, Inc., 760 F.2d 654, 657 (5th Cir.1985) (per curiam), which granted standing to sue under Section 1982 to a white woman who alleged that she was evicted because she had a black male friend. . Although Sheila intended to move into the apartment alone at the outset, Joseph intended to move in after their marriage (and, as already discussed, was a potential tenant on July 5). . G. Jilek Dep. 37 says: Q: When did you first become aware that Mr. Cato was black? A: When I looked at him. . Because Jileks rejected Catos as tenants before receiving their application, Catos’ ability to rent the apartment was not completely clear at the time the claimed discrimination took place. Sheila did offer to place a full security deposit on the apartment (Smith Dep. 44), and the very fact that Catos have been living in the apartment since September 1990 confirms their financial ability to rent it. Understandably Jileks have not raised lack of ability as a defense, nor have they submitted evidence countering Catos’ assertion that they were able to rent the apartment (Amended Complaint ¶ 8). That will therefore be considered an undisputed fact. . In the Title VII employment discrimination context, Terbovitz v. Fiscal Court of Adair County, 825 F.2d 111, 115 (6th Cir.1987) (citation omitted) has held that the prima facie case analysis is not necessary when plaintiffs offer, and the finder of fact believes, direct evidence of discriminatory intent: “Direct evidence and the McDonnell Douglas [Corp v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ] [prima facie case] formulation are simply different evidentiary paths by which to resolve the ultimate issue of defendant’s discriminatory intent.” Direct evidence of discrimination, if credited by the fact finder, removes the case from McDonnell" }, { "docid": "22851078", "title": "", "text": "goods delivered, and generally robbed in purchasing the necessities of war. Congress wanted to stop this plundering of the public treasury. At the same time it is equally clear that the False Claims Act was not designed to reach every kind of fraud practiced on the Government. From the language of that Act, read as a whole in the light of normal usage, and the available legislative history we are led to the conclusion that an application for credit insurance does not fairly come within the scope that Congress intended the Act to have. This question has now been considered by the Courts of Appeals for the Third, Fourth, and Fifth Circuits, as well as by District Courts in those circuits, and all have reached the same conclusion. The judgment of the Court of Appeals is affirmed in McNinch and reversed in Cato and Toepleman and the cause is remanded for further proceedings not inconsistent with this opinion. /£ {s so ordered. R. S. §§ 3490, 5438 (1878), which are set out in note 1, Rainwater v. United States, ante, p. 590. In Cato the suit was filed in the Eastern District of Virginia. The defendants were Cato Brothers, Inc., a Virginia corporation, and Wilfred Cato, William Cato and Magie Stone, all directors and officers of the corporation. Toepleman was brought in the Eastern District of North Carolina. Named as defendants were Frederick Toepleman and Garland Greenway, as individuals and partners. After trial, the District Court exonerated Greenway and he is no longer involved. In McNinch the action was instituted in the Eastern District of South Carolina. The defendants were Howard McNinch, Rosalie McNinch and Garis Zeigler. In general see 48 Stat. 1246, as amended, 12 U. S. C. § 1701 et seq.; 24 CFR §§ 200.2-200.3, 201.1-201.16. In somewhat greater detail the complaint made the following assertions: The defendants Howard and Rosalie McNinch were officers of an unincorporated home construction business and the defendant Zeigler was one of their salesmen. The defendants presented several applications for FHA-insured loans to a qualified bank. The loans were sought on behalf of" }, { "docid": "2194154", "title": "", "text": "1390-91 (11th Cir.1982). Here the only evidence implicating Cato was the uncorroborated hearsay statement of a confidential informant. The defendants argue that the informant’s reliability was confirmed by a polygraph test that supported the informant’s veracity, and by Special Agent Pickett’s assertion to Captain Calderon that the informant was truthful. The informant’s reliability, however, is not the critical issue. He only knew what he had been told by Johnson. Johnson was the only person who knew whether Cato was involved. The reliability of Johnson’s statements was not enhanced by the results of his polygraph examination. Moreover, Johnson never told anyone that Cato actually knew of the plot; he only told the informant that Cato would supply the metal stock. While we remain faithful to the Supreme Court’s admonition that we should not reweigh evidence or judge the credibility of witnesses, the only evidence in this case implicating Cato is an inmate’s statement that was related to prison officials through a confidential informant who had no first hand knowledge of any relevant statements or actions by Cato. Furthermore, the polygraph test of the inmate who made the statement was inconclusive. This is not enough evidence to meet the Hill standard. We reverse the district court’s grant of summary judgment for the defendants, and remand for proceedings not inconsistent with this opinion. REVERSED AND REMANDED. . The fate of the other five inmates, who were implicated but not identified, is unknown. . We review de novo the district court’s legal conclusion that the \"some evidence” standard was met. See Toussaint, 801 F.2d at 1087. . The district court made no findings with respect to, and we express no opinion on, the issue of whether each of the defendants has the requisite causal connection with the plaintiffs alleged constitutional injury." }, { "docid": "22041802", "title": "", "text": "50 App. U.S.C. § 1989a(a). The court concluded that Cato’s claims are barred by sovereign immunity, and that the appropriate forum for policy questions of the sort raised by her complaint is Congress, rather than the courts. Cato timely appealed. II First, Cato contends that dismissal of her action was premature in that she was given no opportunity to be heard on the adequacy of her complaint, or to amend. She also argues that the complaint should not have been dismissed merely because the court has doubts that the plaintiff will prevail. A district court may, in its discretion, dismiss an in forma pauperis complaint “if satisfied that the action is frivolous or malicious.” 28 U.S.C. § 1915(d); Denton, 504 U.S. at 33, 112 S.Ct. at 1733-34. A complaint is frivolous within the meaning of § 1915(d) if it lacks an arguable basis either in law or in fact. Id. at 31,112 S.Ct. at 1733 (quoting Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989)). A pro se litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987). We do not read the district court’s order as dismissing Cato’s complaint on account of doubts about her ability to succeed. Rather, the court determined that Cato had not met her burden of showing a waiver of sovereign immunity, and that her claims were not legally cognizable because they raise “a ‘policy question’ which the judiciary ‘has neither the authority nor wisdom to address.’ ” (Order Dismissing Complaint, quoting Fullilove v. Klutznick, 448 U.S. 448, 537, 100 S.Ct. 2758, 2805, 65 L.Ed.2d 902 (1980) (Stevens, J., dissenting)). For these reasons, the court concluded that while Cato may be justified in seeking redress for past and present injustices from the Congress, the court lacked jurisdiction to grant the requested relief. As Cato’s complaint neither identifies any constitutional or statutory right that was violated, nor" } ]

[ { "docid": "14237247", "title": "", "text": "then kept overnight in a cell. In the morning they were brought to Court and released because the offenses for which they had been arrested could not be proven to have been committed by them. 286 N.Y.S.2d at 577. See Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim.L.Bull. 205, 220-28 (1967); Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1, 8 (1960); Lacey, Vagrancy and Other Crimes of Personal Condition, 66 Harv.L.Rev. 1203, 1219-24 (1953). See also Winters v. New York, 333 U.S. 507, 540, 68 S.Ct. 665, 92 L.Ed. 840 (1948) (Frankfurter, J., dissenting). To the extent the statute can be interpreted to support dragnet, street-sweeping operations absent probable cause of actual criminality, it conflicts with established notions of due process. Beck v. Ohio, supra; Henry v. United States, supra; Wong Sun v. United States, 371 U.S. 471, 479-482, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Even in the absence of purposeful circumvention of traditional standards for lawful arrests, § 240.35(6) confers discretion that is simply too unbridled to satisfy due process standards. The “infirmity” lies in the imprecision of the statute, not the subjective intent of enforcement officials. The Supreme Court has noted, “ [w] ell-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law.” Baggett v. Bullitt, supra, 377 U.S. at 373, 84 S.Ct. at 1323. Applying the standards enunciated in Papachristou, Palmer, and Smith, we conclude, as did the New York Court of Appeals in Berck, that § 240.35(6) contravenes the Due Process Clause of the Fourteenth Amendment not only because it fails to specify adequately the conduct it proscribes, but also because it fails to provide sufficiently clear guidance for police, prosecutors, and the courts so that they can enforce the statute in a manner that is consistent with the Fourth Amendment. Accordingly, Newsome’s arrest pursuant to that section was unlawful. IV. SEARCH INCIDENT TO ARREST Having concluded that New-some’s arrest pursuant to an unconstitutional statute was unlawful, we turn our attention to" } ]

[ { "docid": "16931934", "title": "", "text": "example. In less than two years, Lawson was arrested on approximately fifteen occasions for violating section 647(e). Of those fifteen arrests, only two resulted in prosecution, and one of those cases was dismissed. We hold that section 647(e) violates the due process clause because it encourages arbitrary and discriminatory enforcement. 4. Fair and Adequate Notice The due process clause requires that a penal statute “ ‘give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden The Solomon court held that section 647(e) met this test because the person requested to identify himself is put on direct notice as to what constitutes the unlawful conduct, for before any violation of the statute can occur the request for identification must first be made. 33 Cal.App.3d at 435, 108 Cal.Rptr. 867. We believe that this reasoning circumvents the question of whether fair notice is provided. Due process demands both reasonable notice to the possible offender and, a specific standard to guide police. Powell v. Stone, 507 F.2d 93, 96 (9th Cir. 1974), rev’d on other grounds, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1965). Section 647(e) fails to identify any commonly understood act of suspicious circumstances of which ordinary citizens are aware; it authorizes arrest merely “if suspicion of criminality happens to be created in the mind of the arresting officer.” An innocent person cannot generally know when a police officer has reasonable cause to believe that his behavior warrants further investigation for criminal activity, and therefore cannot know when refusal to identify himself will be a crime. People v. De Fillippo, 80 Mich.App. 197, 262 N.W.2d 921, 923 (1977), rev’d on other grounds, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). When a person is stopped by the police and asked for identification, the individual must either comply with the request or face arrest without any basis for determining whether the denial constitutes a violation of the statute. Since “[n]o one may be required under peril of life, liberty or property to speculate as to the meaning of penal statutes,” Lanzetta v. New Jersey," }, { "docid": "16931947", "title": "", "text": "We believe that the Solomon court meant to incorporate in principle the standards enunciated in Terry. . This analysis is slightly askew since Terry requires that an officer possess both reasonable suspicion that criminal activity is afoot and that the person with whom he is dealing may be armed and dangerous. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968); 3 W. La Fave, Search and Seizure § 9.3, at 63-69 (1978). A reasonable suspicion of criminal activity alone is insufficient to justify a patdown search. See Powell v. Stone, 507 F.2d 93, 96 n.3 (1974), rev’d on other grounds, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). . See Terry v. Ohio, 392 U.S. 1, 34-35, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889 (1968) (White, J. concurring) (“the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest”); Michigan v. De Fillippo, 443 U.S. 31, 44-45, 99 S.Ct. 2627, 2635-2637, 61 L.Ed.2d 343 (1979) (Brennan, J., dissenting); United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1172 (2d Cir. 1974) aff’d sub nom. Lefkowitz, Atty. Gen. of New York v. New- some, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); People v. De Fillippo, 80 Mich.App. 197, 262 N.W.2d 921, 924 (1977), rev’d on other grounds, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979); People v. Berck, 32 N.Y.2d 567, 347 N.Y.S.2d 33, 300 N.E.2d 411, 414-15, cert. denied, 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973); Keenan, supra note 7, at 298-301. But see State v. Ecker, 311 So.2d 104, 107-09 (Fla.), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975). . The vagrancy statute permitted a police officer to arrest an individual who, after inquiry by the officer, refused to identify himself, “under circumstances which justify suspicion that he may be engaged or about to engage in crime.” 492 F.2d at 1171. The quoted language is very similar to the reference in Terry to the situation where" }, { "docid": "13738357", "title": "", "text": "Lawson v. Kolender, 658 F.2d 1362 (9th Cir.1981), we invalidated a disorderly conduct statute that required individuals to identify themselves to police based on less than probable cause, holding that the statute was void for vagueness and that it violated the Fourth Amendment. In Kolender v. Lawson, 461 U.S. 352, 361-62, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), the Supreme Court affirmed our decision on the ground that the statute was void for vagueness and declined to address our alternate holding that the statute also violated the Fourth Amendment. Nevertheless, the Supreme Court did not reverse our decision in Lawson; therefore, Lawson’s holding that the police cannot, consistent with the Fourth Amendment, compel identification during an investigatory stop remains good law in this circuit. In addition, we reaffirmed the holding of Lawson in Martinelli v. City of Beaumont, 820 F.2d 1491 (9th Cir.1987). In Marti-nelli, the plaintiff was approached by officers who told her they were investigating an accident that may have involved her automobile. Despite the officers’ repeated requests that the plaintiff identify herself, she refused, and was ultimately arrested for “delaying a lawful police investigation by refusing to identify herself.” Id. at 1492. The officers relied on a state statute that criminalized wilful resistance, delay or obstruction of any public officer in the discharge of his duties. Id. at 1492 n. 1. Relying on Lawson, we held that arresting the plaintiff for refusing to identify herself during a Terry stop violated the Fourth Amendment. Martinelli, 820 F.2d at 1494. [10] Thus, under Martinelli and Lawson, Carey has alleged a violation of his Fourth Amendment rights. To the extent §§ 171.123 and 197.190 authorized Carey’s arrest for refusing to identify himself, they are unconstitutional under the law of this circuit. In Lawson, we explained that such statutes violate the Fourth Amendment because “as a result of the demand for identification, the statutes bootstrap the authority to arrest on less than probable cause, and [because] the serious intrusion on personal security outweighs the mere possibility that identification might provide a link leading to arrest.” 658 F.2d at 1366-67; see also" }, { "docid": "16931926", "title": "", "text": "vagrancy statutes “conflict with the deeply rooted Fourth Amendment requirement that arrests must be predicated on probable cause.” Id. at 1172. As we stated in Powell, this vagrancy ordinance subverts the probable cause requirement. It authorizes arrest and conviction for conduct that is no more than suspicious. A legislature could not reduce the standard for arrest from probable cause to suspicion; and it may not accomplish the same result indirectly by making suspicious conduct a substantive offense. Vagrancy statutes do just that, for they authorize arrest and conviction for the vagrancy offense if there are reasonable grounds to suspect that the accused may have committed, or if left at large will commit, a more serious offense. Police are duty-bound to investigate suspicious conduct, and founded suspicion will support an investigative stop and inquiry. But more is required to justify arrest. 507 F.2d at 96 (citations omitted). Other courts considering similar statutes have reached the same conclusion. Vagrancy ordinances cannot turn otherwise innocent conduct into a crime. The second reason why we believe section 647(e) intrudes upon the fundamental right to be secure against unreasonable searches and seizures is that the Solomon court improperly applied the Terry balancing test. We agree that prevention of crime is “a weighty social objective.” Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979). The right of an individual wanderer to be free from the governmental intrusion of being required to furnish identification, however, is also substantial. The Supreme Court has extolled the freedom of locomotion. Persons “wandering or strolling” from place to place have been extolled by Walt Whitman and Vachel Lindsay. The qualification “without any lawful purpose or object” may be a trap for innocent acts.... Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may be “casing” a place for a holdup.... The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been" }, { "docid": "16931932", "title": "", "text": "statute violates the due process clause when it is so vague and indefinite as to encourage arbitrary and discriminatory enforcement. Papachristou, id. at 162, 92 S.Ct. at 843. The Solomon court held that section 647(e) was not so susceptible because it becomes operative only when the surrounding circumstances indicate to a reasonable man some impairment of the public safety, and when such circumstances can be objectively defined and articulated. Solomon, 33 Cal.App.3d at 438-39, 108 Cal. Rptr. 867. Accord State v. Bicker, 311 So.2d 104, 110 (Fla.), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975). We again find ourselves in agreement with United States ex rel. Newsome v. Malcolm, 492 F.2d 1166 (2d Cir. 1974), aff’d sub nom. Lefkowitz, Attorney General of New York v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975). We believe that section 647(e) impermissibly grants the police virtually unfettered discretion by providing no standards for determining whether a person is engaged in suspicious loitering, and by failing to specify what forms of identification are sufficient to satisfy the statute. This result has been reached by other courts considering statutes similar to section 647(e) . Moreover, the Solomon approach, although providing safeguards against unwarranted convictions because arrest decisions are subject to independent review, does not protect against arbitrary arrests or police harassment, which are also prohibited by the fourth amendment. Under section 647(e) it could well be conceivable that a group might lawfully meet in support of an unpopular cause. One waiting outside for the meeting to commence could be required, at the unbridled discretion of an officer, to furnish identification at the peril of being arrested. Sec tion 647(e) could well create a chilling effect on the exercise of first amendment rights. As the court noted in Newsome: the section could lend itself to the abuse of pretextual arrest of people who are members of unpopular groups or who are merely suspected of engaging in other crimes, without sufficient probable cause to arrest for the underlying crime. 492 F.2d at 1173 (footnote omitted). This case furnishes a similar" }, { "docid": "3598221", "title": "", "text": "the man was involved in a crime: The application of Tex.Penal Code Ann., Tit. 8, § 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct. 443 U.S. at 53, 99 S.Ct. at 2641; see also Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983). In Lawson v. Kolender, 658 F.2d 1362 (9th Cir.1981), affd., 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), we held that a California vagrancy statute requiring persons to provide reliable identification upon request during Terry stops violated the fourth amendment’s proscription against unlawful searches and seizures. We reasoned that “as a result of the demand for identification, the [vagrancy] statutes bootstrap the authority to arrest on less than probable cause,” and that “the serious intrusion on personal security outweighs the mere possibility that identification may provide a link leading to arrest.” 658 F.2d at 1366-67. The present case falls squarely within our holding in Lawson. The question whether Martinelli’s detention was a Terry stop or a custodial interrogation presents an issue of fact for the jury. The court should have instructed the jury that the use of Section 148 to arrest a person for refusing to identify herself during a lawful Terry stop violates the Fourth Amendment’s proscription against unreasonable searches and seizures. See Lawson, 658 F.2d at 1366. We conclude that the district court’s instruction that Section 148 was constitutional as applied misstated the law to the plaintiffs’ prejudice. See Kisor, 783 F.2d at 1340. We therefore reverse the verdicts in favor of Officers Acosta and Van Burén and remand for a new trial as to those defendants. We find no error in the directed verdicts in favor of Officer Augustyn and the City of Beaumont, and we therefore affirm those judgments in their favor. We also find no merit in Martinelli’s contentions that (1) the court did not adequately instruct the jury on Martinelli’s Fifth Amendment rights; (2) the court erred in" }, { "docid": "1876468", "title": "", "text": "the Henderson ordinance — that “surrounding circumstances . . . indicate to a reasonable man that the public safety demands such identification”— cannot save the ordinance. Whether “public safety demands . . identification” is far too amorphous a standard to provide either reasonable notice to the possible offender (who, indeed, may not be aware of the circumstances that implicate the public safety), or a sufficiently specific standard to guide the police. A similar, but less vague, limitation (“circumstances which justify suspicion that [a person] may be engaged or about to engage in crime”) was found constitutionally inadequate in United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1173 (2d Cir. 1974). From this analysis, it is clear that the Henderson vagrancy ordinance is incompatible with Fifth Amendment due process notice requirements incorporated in the Fourteenth Amendment. It should be emphasized that the ordinance is also incompatible with incorporated Fourth Amendment principles. A vagrancy ordinance of this kind “conflict[s] with the deeply rooted Fourth Amendment requirement that arrests must be predicated on probable cause.” United States ex rel. Newsome v. Malcolm, supra, 492 F.2d at 1172. See also Papachristou, supra, 405 U.S. at 169-170, 92 S.Ct. 839; Hall v. United States, 148 U.S.App.D.C. 42, 459 F.2d 831 (1972) (an banc), noted in 47 N.Y.U.L.Rev. 595 (1972) and 18 Vill.L.Rev. 117 (1972). As these authorities reflect, such a vagrancy ordinance subverts the “probable cause” requirement in two ways. It authorizes arrest and conviction for conduct that is no more than suspicious. A legislature could not reduce the standard for arrest from probable cause to suspicion; and it may not accomplish the same result indirectly by making suspicious conduct a substantive offense. Vagrancy statutes do just that, for they authorize arrest and conviction for the vagrancy offense if there are reasonable grounds to suspect that the accused may have committed, or if left at large will commit, a more serious offense. Police are duty-bound to investigate suspicious conduct, and founded suspicion will support an investigative stop and inquiry. Wade v. United States, 457 F.2d 335, 336 (9th Cir. 1972). But more is" }, { "docid": "16931924", "title": "", "text": "the fourth amendment’s proscription against unreasonable searches and seizures was specifically left open by the Supreme Court’s decision in Brown v. Texas, 443 U.S. 47, 53 n.3, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979) (holding that a person could not be required to furnish identification if not reasonably suspected of any criminal conduct). Because Terry approved a more substantial intrusion upon the person (a limited patdown search for weapons) when a police officer possesses “articulable suspicion less than probable cause,” 392 U.S. at 31, 88 S.Ct. at 1885, the Solomon court concluded that a temporary detention followed by a request for identification also was justifiable. 33 Cal.App.3d at 435-37,108 Cal.Rptr. 867. The Solomon court applied the Terry test by balancing the public interest with the individual’s right to personal security free from arbitrary interference by law officers. It found that “the public need involved, protection of society against crime, is strong, while the individual right involved, anonymity when loitering on the streets under suspicious circumstances, is weak.” 33 Cal.App.3d at 436-37, 108 Cal. Rptr. 867. Although the .prevention of crime is “a weighty social objective,” Brown, 443 U.S. at 52, 99 S.Ct. at 2641, we agree with the courts and commentators who have concluded that statutes like section 647(e), which require the production of identification, are in violation of the fourth amendment. The two reasons for this conclusion are that as a result of the demand for identification, the statutes bootstrap the authority to arrest on less than probable cause, and the seri ous intrusion on personal security outweighs the mere possibility that identification may provide a link leading to arrest. The first reason was explained by the Second Circuit when it considered a New York vagrancy statute which, as written, was very similar to section 647(e) as construed by the Solomon court. United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1171-74 (2d Cir. 1974), aff’d sub nom. Lefkowitz, Attorney General of New York v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975). In finding the statute unconstitutional, the Newsome court noted that such" }, { "docid": "16931920", "title": "", "text": "person who is stopped on less than probable cause cannot be punished for failing to identify himself.” The court therefore enjoined enforcement of the statute. The court held, however, that Lawson could not recover damages because each officer had a good faith belief that each “contact and/or arrest was lawful.” H. A. Porazzo, the named state official, appeals contending that the statute is constitutional. Lawson cross-appeals contending that the district court erred in denying him a jury trial. We affirm the district court ruling that the statute is unconstitutional but reverse the court’s denial of a jury trial. 1. CONSTITUTIONALITY OF SECTION 647(e) A. VAGUENESS 1. Introduction In Powell v. Stone, 507 F.2d 93 (9th Cir. 1974), rev’d on other grounds, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), we struck down a vagrancy ordinance from Henderson, Nevada, that was virtually identical to section 647(e). The ordinance was void for vagueness both because it failed to give a person of ordinary intelligence fair notice that his contemplated conduct was forbidden and because it encouraged arbitrary and erratic arrests and convictions. Id. at 95. We also held that the ordinance violated the fourth amendment by permitting arrests without probable cause. Id. at 96. See also Anderson v. Nemetz, 474 F.2d 814, 817 (9th Cir. 1973). For the reasons expressed in Powell, section 647(e) is also unconstitutional unless the California appellate courts have authoritatively construed the statute so as to cure its defects. We will assess the constitutionality of the statute in light of the California courts’ interpretations of it. The California courts have considered the constitutionality of section 647(e) on several occasions. Each time the statute has been upheld. The most recent and extensive discussion is contained in People v. Solomon, 33 Cal.App.3d 429, 108 Cal.Rptr. 867 (1973), cert. denied, 415 U.S. 951, 94 S.Ct. 1476, 39 L.Ed.2d 567 (1974). Solomon held that section 647(e) did not violate the federal constitution because: (1) it was not vague, 33 Cal.App.3d at 435-36, 108 Cal. Rptr. 867; (2) the requirement of identification did not infringe upon the right to be free" }, { "docid": "16931948", "title": "", "text": "(Brennan, J., dissenting); United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1172 (2d Cir. 1974) aff’d sub nom. Lefkowitz, Atty. Gen. of New York v. New- some, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); People v. De Fillippo, 80 Mich.App. 197, 262 N.W.2d 921, 924 (1977), rev’d on other grounds, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979); People v. Berck, 32 N.Y.2d 567, 347 N.Y.S.2d 33, 300 N.E.2d 411, 414-15, cert. denied, 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973); Keenan, supra note 7, at 298-301. But see State v. Ecker, 311 So.2d 104, 107-09 (Fla.), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975). . The vagrancy statute permitted a police officer to arrest an individual who, after inquiry by the officer, refused to identify himself, “under circumstances which justify suspicion that he may be engaged or about to engage in crime.” 492 F.2d at 1171. The quoted language is very similar to the reference in Terry to the situation where an officer is led “to conclude in light of his experience that criminal activity may be afoot.” Terry, 392 U.S. at 30, 88 S.Ct. at 1884. Just as the Solomon court saw no essential difference between the Terry standard and the standard in its statute, 33 Cal.App.3d at 435, 108 Cal.Rptr. 867, we see no essential difference between the Terry standard and the standard in the New York statute. Therefore, there is no essential difference between the New York statute and the California statute. . See People v. De Fillippo, 80 Mich.App. 197, 262 N.W.2d 921, 923-24 (1977), rev’d on other grounds, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979); People v. Berck, 32 N.Y.2d 567, 347 N.Y.S.2d 33, 300 N.E.2d 411, 414-15, cert. denied, 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973). See also Hall v. United States, 459 F.2d 831, 835-36 (D.C.Cir.1972) (en banc). . See also People v. De Fillippo, 80 Mich.App. 197, 262 N.W.2d 921, 924 (1977) (quoting Pinkerton v. Verberg, 78 Mich. 573, 44 N.W. 579," }, { "docid": "1876467", "title": "", "text": "of the Henderson ordinance, the latter is more subj'ect to these criticisms than the former. The remaining two elements of the Henderson ordinance do not add significant specificity. Assuming the phrase “to identify himself” is clear enough, one who properly identifies himself when asked would still violate the ordinance if he refused upon request “to account for his presence” — a phrase that reflects all of the deficiencies and is subj'ect to all of the abuses that underlie the ruling in Papachristou. See Ricks v. District of Columbia, 134 U.S.App.D.C. 201, 414 F.2d 1097, 1104-1105 (1968); Baker v. Bindner, 274 F.Supp. 658, 664 (W.D.Ky.1967); United States v. Margeson, 259 F.Supp. 256, 268-269 (E.D.Pa.1966). The statutes involved in these three cases predicated criminality upon the offender’s failure to give a “good” or “satisfactory” account of his presence. This condition is not explicitly stated in the Henderson ordinance, but it is clearly implied. Appellant offered an explanation of his conduct; he was arrested because the officer did not believe it. The third element of the offense under the Henderson ordinance — that “surrounding circumstances . . . indicate to a reasonable man that the public safety demands such identification”— cannot save the ordinance. Whether “public safety demands . . identification” is far too amorphous a standard to provide either reasonable notice to the possible offender (who, indeed, may not be aware of the circumstances that implicate the public safety), or a sufficiently specific standard to guide the police. A similar, but less vague, limitation (“circumstances which justify suspicion that [a person] may be engaged or about to engage in crime”) was found constitutionally inadequate in United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1173 (2d Cir. 1974). From this analysis, it is clear that the Henderson vagrancy ordinance is incompatible with Fifth Amendment due process notice requirements incorporated in the Fourteenth Amendment. It should be emphasized that the ordinance is also incompatible with incorporated Fourth Amendment principles. A vagrancy ordinance of this kind “conflict[s] with the deeply rooted Fourth Amendment requirement that arrests must be predicated on probable cause.” United" }, { "docid": "16931933", "title": "", "text": "are sufficient to satisfy the statute. This result has been reached by other courts considering statutes similar to section 647(e) . Moreover, the Solomon approach, although providing safeguards against unwarranted convictions because arrest decisions are subject to independent review, does not protect against arbitrary arrests or police harassment, which are also prohibited by the fourth amendment. Under section 647(e) it could well be conceivable that a group might lawfully meet in support of an unpopular cause. One waiting outside for the meeting to commence could be required, at the unbridled discretion of an officer, to furnish identification at the peril of being arrested. Sec tion 647(e) could well create a chilling effect on the exercise of first amendment rights. As the court noted in Newsome: the section could lend itself to the abuse of pretextual arrest of people who are members of unpopular groups or who are merely suspected of engaging in other crimes, without sufficient probable cause to arrest for the underlying crime. 492 F.2d at 1173 (footnote omitted). This case furnishes a similar example. In less than two years, Lawson was arrested on approximately fifteen occasions for violating section 647(e). Of those fifteen arrests, only two resulted in prosecution, and one of those cases was dismissed. We hold that section 647(e) violates the due process clause because it encourages arbitrary and discriminatory enforcement. 4. Fair and Adequate Notice The due process clause requires that a penal statute “ ‘give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden The Solomon court held that section 647(e) met this test because the person requested to identify himself is put on direct notice as to what constitutes the unlawful conduct, for before any violation of the statute can occur the request for identification must first be made. 33 Cal.App.3d at 435, 108 Cal.Rptr. 867. We believe that this reasoning circumvents the question of whether fair notice is provided. Due process demands both reasonable notice to the possible offender and, a specific standard to guide police. Powell v. Stone, 507 F.2d 93, 96 (9th Cir. 1974), rev’d on" }, { "docid": "16931925", "title": "", "text": "867. Although the .prevention of crime is “a weighty social objective,” Brown, 443 U.S. at 52, 99 S.Ct. at 2641, we agree with the courts and commentators who have concluded that statutes like section 647(e), which require the production of identification, are in violation of the fourth amendment. The two reasons for this conclusion are that as a result of the demand for identification, the statutes bootstrap the authority to arrest on less than probable cause, and the seri ous intrusion on personal security outweighs the mere possibility that identification may provide a link leading to arrest. The first reason was explained by the Second Circuit when it considered a New York vagrancy statute which, as written, was very similar to section 647(e) as construed by the Solomon court. United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1171-74 (2d Cir. 1974), aff’d sub nom. Lefkowitz, Attorney General of New York v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975). In finding the statute unconstitutional, the Newsome court noted that such vagrancy statutes “conflict with the deeply rooted Fourth Amendment requirement that arrests must be predicated on probable cause.” Id. at 1172. As we stated in Powell, this vagrancy ordinance subverts the probable cause requirement. It authorizes arrest and conviction for conduct that is no more than suspicious. A legislature could not reduce the standard for arrest from probable cause to suspicion; and it may not accomplish the same result indirectly by making suspicious conduct a substantive offense. Vagrancy statutes do just that, for they authorize arrest and conviction for the vagrancy offense if there are reasonable grounds to suspect that the accused may have committed, or if left at large will commit, a more serious offense. Police are duty-bound to investigate suspicious conduct, and founded suspicion will support an investigative stop and inquiry. But more is required to justify arrest. 507 F.2d at 96 (citations omitted). Other courts considering similar statutes have reached the same conclusion. Vagrancy ordinances cannot turn otherwise innocent conduct into a crime. The second reason why we believe section 647(e) intrudes" }, { "docid": "3598220", "title": "", "text": "degrees of— THE COURT: That has been modified. What’s the name of these cases? Stop and identify. It’s been modified by the Supreme Court. MR. McDANIELS: The Lawton (phonetic) case, your Honor— ****** MR. McDANIELS: In the Lawton case, your Honor, the California case where they stopped this guy, asking for his name, he refused to give it. They held the statute unconstitutional. THE COURT: Is not subject to any further interrogation beyond giving the name and identification. But they’ve got to do that. We conclude that plaintiff’s counsel satisfied Rule 51. See Brown, 603 F.2d at 1371. We therefore review the court’s instruction on the constitutionality of Section 148 to determine whether the instruction misled the jury or misstated the law to Martinelli’s prejudice. Ill In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the Supreme Court held that a Texas statute requiring persons stopped by the police to identify themselves was unconstitutional as applied to a man who was stopped by officers who had no reasonable suspicion that the man was involved in a crime: The application of Tex.Penal Code Ann., Tit. 8, § 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct. 443 U.S. at 53, 99 S.Ct. at 2641; see also Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983). In Lawson v. Kolender, 658 F.2d 1362 (9th Cir.1981), affd., 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), we held that a California vagrancy statute requiring persons to provide reliable identification upon request during Terry stops violated the fourth amendment’s proscription against unlawful searches and seizures. We reasoned that “as a result of the demand for identification, the [vagrancy] statutes bootstrap the authority to arrest on less than probable cause,” and that “the serious intrusion on personal security outweighs the mere possibility that identification may provide a link leading to arrest.” 658 F.2d at 1366-67. The present case falls" }, { "docid": "1876473", "title": "", "text": "searched, and the persons or things to be seized.” In Sibron, evidence obtained in a search as-sertedly conducted in accordance with a state “stop-and-frisk” statute was excluded on Fourth Amendment grounds with an express disclaimer by the Court of any need to inquire whether the state statute was valid or had been complied with. The statutes involved in these cases dealt directly with the standards and procedures governing searches. But as noted earlier, though in form the Henderson ordinance purports to create a substantive offense, in effect it negates the requirement of probable cause, basic to the Fourth Amendment. The exclusionary rule was applied to bar evidence obtained in searches incident to good-faith arrests under invalid vagrancy statutes in both United States ex rel. Newsome v. Malcom, supra, 492 F.2d at 1174, and Hall v. United States, supra, 459 F.2d at 841. The reason suggested in Newsome is that the search-incident-to-arrest exception is justified, only because probable cause is required for the arrest, and, since this essential Fourth Amendment safeguard is lacking in arrests under a vagrancy ordinance, ■searches incident to such arrests are also unsupported by probable cause and are therefore invalid. This explains the invalidity of the search, but it does not offer a rationale for the exclusion of the evidence. Neither does the opinion in Hall. Hall found it unnecessary to decide whether the exclusionary rule should apply to the fruits of all searches incident to arrests under unconstitutional statutes. The Court concluded that at least, for the reasons suggested in Sto-vall v. Denno, 388 U.S. 293, 301, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the exclusionary rule should be applied where the defendant was the first to successfully challenge a search on the new constitutional ground, as was the case in Hall. In view of Papachristou, Newsome, and Hall, however, it is far from clear that appellant could qualify as a constitutional innovator. Two considerations clearly support the application of the exclusionary rule to this case. It may not be appropriate to fault an officer for making an arrest on mere suspicion, contrary to well-established Fourth" }, { "docid": "1876470", "title": "", "text": "required to justify arrest. Henry v. United States, 361 U.S. 98, 101, 104, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). The “probable cause” requirement is negated by such vagrancy ordinances in a second way. Their language is so general and vague, the elements of the offense so obscure, that they afford no reasonable criteria by which an officer may determine whether the ordinance has or has not been violated. Because a man of reasonable caution cannot form a reasonable belief as to whether such an ordinance has been violated, an officer cannot “gauge justification for [vagrancy] arrests consistly with Fourth Amendment principles.” Hall v. United States, supra, 459 F.2d at 837. II The question remains whether the evidence obtained in the search incident to appellant’s arrest under the unconstitutional Henderson ordinance should have been excluded at his murder trial. Appellee argues that the purpose of the exclusionary rule is to discourage objectionable police conduct, and this purpose would not be advanced by excluding the fruits of a search that appeared to be lawful when made. The crux of the contention is that the public interest is not served by deterring officers from enforcing a statute that is apparently valid. Appellant relies upon the principle underlying the holding in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), that police officers cannot be held liable for damage for an arrest made in good faith and on probable cause under a statute they reasonably believe to be valid. Extension of Pierson v. Ray to allow admission of evidence obtained in the search incident to appellant’s arrest for violation of an ordinance invalid under the Fourth Amendment would be inconsistent with a substantial line of Supreme Court authority. See, e. g., Al-meida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2533, 37 L.Ed.2d 596 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 449-453, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Sibron v. New York, 392 U.S. 40, 61-62, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967)." }, { "docid": "8663243", "title": "", "text": "of “suspicious persons.” The present Subsection (C) does not vary significantly; it does the same for merely suspicious conduct. In consequence, the statutory authorization for arrest on “probable cause to believe that [a] person is a vagrant within the meaning of” Subsection (C) really requires no more than a plausible basis for a speculation on criminality. That is a license to arrest on suspicion alone and, as such, is plainly at war with the Fourth Amendment. IV What is manifest on the face of Subsection (C) becomes the more vivid when it is seen in its mode of accustomed operation at the time of appellant’s arrest. For what the broad and un certain contours of the statutory language made a distinct possibility in vagrancy law administration, enforcement practices made a reality. Those practices, as will appear, stemmed from efforts calculated to produce evidence to enhance success in vagrancy prosecutions. The result, practically inevitable in any program to enforce the ill-defined prohibitions of Subsection (C), has been a dilution of even the relatively meaningless probable cause standard the Narcotic Vagrancy Act incorporates, and a flouting of the Reasonable Search and Seizure Clause as well. The utilization of vagrancy arrests to incarcerate suspicious characters without probable cause has been confirmed by the testimony, summarized in our Ricks opinions, of those in best position to know. The technique in vogue when appellant was arrested was a multi-step process. Arrests were preceded by a series of vagrancy observations, each involving surveillance and questioning of individuals found on the streets, followed by recordation and intra-departmental dissemination of the information obtained. The inquiries covered matters related to “giv[ing] a good account of himself,” and ranged beyond to a probe into present and past use of narcotics. After three vagrancy observations, the individual observed became a candidate for a vagrancy arrest. Appellant ran the full gamut of this procedure. Persons for whom there was probable cause to arrest for violation of narcotic laws were arrested therefor, and were not subjected just to a narcotic vagrancy observation. But where there was a basis only to “suspect” one “of" }, { "docid": "16931931", "title": "", "text": "331 (1977). In Mimms, the Supreme Court held that asking the driver of a car which had been stopped for a traffic violation to step out of the car did not violate the guarantees contained in the fourth amendment. The Court found that the government’s justification, safety of the officer, outweighed the minimal intrusion upon the person who had already been legitimately stopped. Id. at 110 — 11, 98 S.Ct. at 333. The government’s justification of the section 647(e) identification requirement is not as significant since an officer’s demand may be made in the absence of any known unlawful conduct, and the intrusion is not de minimis. Moreover, a license to operate a vehicle is a privilege, see Serenko v. Bright, 263 Cal.App.2d 682, 70 Cal.Rptr. 1, 4 — 5 (1968), not a constitutionally protected right like the freedom to go where one pleases. See Papachristou, 405 U.S. at 163-65, 92 S.Ct. at 843-845. We hold that section 647(e) impermissibly intrudes upon the fourth amendment’s proscription against unreasonable searches and seizures. 3. Arbitrary Enforcement A statute violates the due process clause when it is so vague and indefinite as to encourage arbitrary and discriminatory enforcement. Papachristou, id. at 162, 92 S.Ct. at 843. The Solomon court held that section 647(e) was not so susceptible because it becomes operative only when the surrounding circumstances indicate to a reasonable man some impairment of the public safety, and when such circumstances can be objectively defined and articulated. Solomon, 33 Cal.App.3d at 438-39, 108 Cal. Rptr. 867. Accord State v. Bicker, 311 So.2d 104, 110 (Fla.), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975). We again find ourselves in agreement with United States ex rel. Newsome v. Malcolm, 492 F.2d 1166 (2d Cir. 1974), aff’d sub nom. Lefkowitz, Attorney General of New York v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975). We believe that section 647(e) impermissibly grants the police virtually unfettered discretion by providing no standards for determining whether a person is engaged in suspicious loitering, and by failing to specify what forms of identification" }, { "docid": "8663242", "title": "", "text": "beyond the citizen’s ability to identify does the same for policemen called upon to enforce it. Because the elements of the Subsection (C) offense are obscure, even officers engaged in its good faith ef-fectuation cannot gauge justification for Subsection (C) arrests consistently with Fourth Amendment principles. About the only thing the fuzzy language of Subsection (C) illuminates is the probability that the substantive status offense it prescribes will be deemed evidenced by conduct which does no more than arouse a suspicion of criminality. Moreover, police officers, duty bound to faithfully execute the criminal laws, could hardly be expected to ignore either the broad latitude of discretion the statute confers or the implicit statutory concept of vagrancy enforcement as a device for controlling suspected but unprovable non-vagrancy crime. Thus the vice of vagueness, which precludes prosecution and punishment for alleged violations of Subsection (C), becomes intermeshed with an inherent tendency to promote arrests on mere surmise. Seventy-one years ago this court, in a decision never questioned since, invalidated a statute purporting to authorize arrest and conviction of “suspicious persons.” The present Subsection (C) does not vary significantly; it does the same for merely suspicious conduct. In consequence, the statutory authorization for arrest on “probable cause to believe that [a] person is a vagrant within the meaning of” Subsection (C) really requires no more than a plausible basis for a speculation on criminality. That is a license to arrest on suspicion alone and, as such, is plainly at war with the Fourth Amendment. IV What is manifest on the face of Subsection (C) becomes the more vivid when it is seen in its mode of accustomed operation at the time of appellant’s arrest. For what the broad and un certain contours of the statutory language made a distinct possibility in vagrancy law administration, enforcement practices made a reality. Those practices, as will appear, stemmed from efforts calculated to produce evidence to enhance success in vagrancy prosecutions. The result, practically inevitable in any program to enforce the ill-defined prohibitions of Subsection (C), has been a dilution of even the relatively meaningless probable cause" }, { "docid": "1876469", "title": "", "text": "States ex rel. Newsome v. Malcolm, supra, 492 F.2d at 1172. See also Papachristou, supra, 405 U.S. at 169-170, 92 S.Ct. 839; Hall v. United States, 148 U.S.App.D.C. 42, 459 F.2d 831 (1972) (an banc), noted in 47 N.Y.U.L.Rev. 595 (1972) and 18 Vill.L.Rev. 117 (1972). As these authorities reflect, such a vagrancy ordinance subverts the “probable cause” requirement in two ways. It authorizes arrest and conviction for conduct that is no more than suspicious. A legislature could not reduce the standard for arrest from probable cause to suspicion; and it may not accomplish the same result indirectly by making suspicious conduct a substantive offense. Vagrancy statutes do just that, for they authorize arrest and conviction for the vagrancy offense if there are reasonable grounds to suspect that the accused may have committed, or if left at large will commit, a more serious offense. Police are duty-bound to investigate suspicious conduct, and founded suspicion will support an investigative stop and inquiry. Wade v. United States, 457 F.2d 335, 336 (9th Cir. 1972). But more is required to justify arrest. Henry v. United States, 361 U.S. 98, 101, 104, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). The “probable cause” requirement is negated by such vagrancy ordinances in a second way. Their language is so general and vague, the elements of the offense so obscure, that they afford no reasonable criteria by which an officer may determine whether the ordinance has or has not been violated. Because a man of reasonable caution cannot form a reasonable belief as to whether such an ordinance has been violated, an officer cannot “gauge justification for [vagrancy] arrests consistly with Fourth Amendment principles.” Hall v. United States, supra, 459 F.2d at 837. II The question remains whether the evidence obtained in the search incident to appellant’s arrest under the unconstitutional Henderson ordinance should have been excluded at his murder trial. Appellee argues that the purpose of the exclusionary rule is to discourage objectionable police conduct, and this purpose would not be advanced by excluding the fruits of a search that appeared to be lawful when made." } ]

[ { "docid": "19394386", "title": "", "text": "2010). That law does not, on its face, require the jury to determine whether the entry itself was unlawful, a required element of the so-called \"generic\" offense of burglary that qualifies as an ACCA predicate. See Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The majority holds that a court may not review the underlying facts of Descamps' state crime to determine whether he entered the building unlawfully and, thus, that his burglary conviction may not be used as a predicate offense under ACCA. While I agree with the Court's conclusion, I disagree with its reasoning. I have previously explained that ACCA runs afoul of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because it allows the judge to \"mak[e] a finding that raises [a defendant's] sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant.\" James v. United States, 550 U.S. 192, 231, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (dissenting opinion) (internal quotation marks omitted). Under the logic of Apprendi, a court may not find facts about a prior conviction when such findings increase the statutory maximum. This is so whether a court is determining whether a prior conviction was entered, see 530 U.S., at 520-521, 120 S.Ct. 2348 (THOMAS, J., concurring), or attempting to discern what facts were necessary to a prior conviction. See James, supra , at 231-232, 127 S.Ct. 1586 (THOMAS, J., dissenting). In either case, the court is inappropriately finding a fact that must be submitted to the jury because it \"increases the penalty for a crime beyond the prescribed statutory maximum.\" Apprendi, supra, at 490, 120 S.Ct. 2348 In light of the foregoing, it does not matter whether a statute is \"divisible\" or \"indivisible,\" see ante, at 2278 - 2280, and courts should not have to struggle with the contours of the so-called \"modified categorical\" approach. Ibid. The only reason Descamps' ACCA enhancement is before us is \"because this Court has not yet reconsidered Almendarez-Torres v. United" } ]

[ { "docid": "9050293", "title": "", "text": "for the counts charged, it contained language mirroring the statutory language of New York Penal Law § 120.05(2) as to the first count and New York Penal Law § 120.05(7) (prisoner assault) as to the second count. The government argued that the plea-colloquy transcript showed that Lassend pled guilty to the second count of the indictment, and, consequently, the applicable statutory provision for his conviction was § 120.05(7). At the hearing on Lassend's § 2255 petition in May 2017, Lassend argued for the first time that his New York first-degree robbery conviction under New York Penal Law § 160.15(4) is not a violent felony because the statute does not require the actual use of a dangerous weapon to threaten the victim, nor, he says, does it require that the perpetrator himself intentionally use violent force. On July 11, 2017, the district court denied Lassend's § 2255 petition in a careful decision. See Lassend, 2017 WL 2960518, at *1. Addressing Lassend's procedural default on his ACCA claim, the district court noted that the Supreme Court had rejected vagueness challenges to the ACCA's residual clause in James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), overruled by Johnson II, --- U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569, and Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), overruled by Johnson II, --- U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569, and those decisions were controlling at the time of Lassend's sentencing and direct appeal. Lassend, 2017 WL 2960518, at *8. Moreover, Lassend's direct appeal was filed, argued, and decided before the Supreme Court granted certiorari in Johnson II. Id. As such, the district court found that a Johnson II claim was not reasonably available to Lassend at the time of his direct appeal, thereby establishing cause. Id. The district court also reasoned that the prejudice inquiry merged with Lassend's merits claims because if Lassend could show that he should not have been sentenced under the ACCA in light of Johnson II, \"his failure to raise that claim obviously resulted in prejudice.\"" }, { "docid": "12148255", "title": "", "text": "‘Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.’ ” (quoting Taylor, 495 U.S. at 600, 110 S.Ct. 2143)). In a recent decision, Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), the Court emphasized that a sentencing enhancement’s use of the phrase “conviction” indicates Congress’s intent to apply the categorical approach. 136 S.Ct. at 2252 (“By enhancing the sentence of a defendant who has three ‘previous convictions’ ... rather than one who has thrice committed that crime — Congress indicated that the sentencer should ask only about whether ‘the defendant had been convicted of crimes falling within certain categories,’ and not about what the defendant had actually done.” (quoting Taylor, 495 U.S. at 600, 110 S.Ct. 2143)). Johnson and Mathis looked at ACCA, 18 U.S.C. § 924(e)(l)-(2)(B)(ii), whereas here we examine a part of the Code dealing with repeat sex offenders, 18 U.S.C. § 2426(b)(1)(B). But the categorical approach is not unique to ACCA, Mathis, 136 S.Ct. at 2251 n.2, and both ACCA and the repeat offender statute use the terms “conduct” and “conviction” in a similar manner. ACCA’s residual clause’s description of a predicate conviction is: [A] conviction[ ] for ... any crime ... that ... involves conduct that presents a serious potential risk of physical injury to another; 18 U.S.C. § 924(e) (emphasis added). The repeat offender statute’s description of a predicate conviction is: “[A] conviction for an offense ... consisting of conduct that would have been an offense under a chapter referred to in paragraph (1) if the conduct had occurred within the special maritime and territorial jurisdiction of the United States. Id. § 2426(b)(1)(B) (emphasis added). The government’s contention that § 924(e)(2)(B)(ii) is “materially different” from § 2426(b)(1)(B) because it does not refer to “conduct” is misplaced. Furthermore, both statutes refer to “conviction”— the textual trigger for application of the categorical approach. See Johnson, 135 S.Ct. at 2562. The government also contends that a factual inquiry, not" }, { "docid": "21822680", "title": "", "text": "Reed, 468 U.S. at 8-9, 104 S.Ct. 2901 (addressing a motion under § 2254, but citing the standard from Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816, which addressed a motion under § 2255); Frady, 456 U.S. at 166, 102 S.Ct. 1584 (noting that, although a § 2255 motion does not implicate concerns of comity for state court judgments that exist in a § 2254 motion, there is \"no basis for affording federal prisoners a preferred status when they seek postconviction relief”). Because the Court cites these cases interchangeably, we do as well. . Approximately four years after Snyder was sentenced, this court expressly concluded that Wyoming state burglary convictions that involved occupied structures constituted qualifying offenses under the ACCA’s enumerated crimes clause. United States v. Gonzales, 558 F.3d 1193, 1196-98 (10th Cir. 2009). Gonzales has since been abrogated by the Supreme Court's decision in Mathis v. United States, - U.S. --, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). In Mathis, the Supreme Court held that in \"determin[ing] whether a prior conviction is for generic burglary (or other listed crime) courts apply ... the categorical approach” and must “focus solely on whether the elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of the case.” 136 S.Ct. at 2248. Thus, the Court held, “if the crime of conviction covers any more conduct than the generic offense, then it is not an ACCA 'burglary'—even if the defendant’s actual conduct (i.e., the facts of the crime) fits within the generic offense’s boundaries.” Id. McHUGH, Circuit Judge, concurring in result. I concur with the majority opinion that Mr. Snyder cannot prevail on his motion to vacate or correct his sentence. But I write separately because I depart from the majority’s “Timeliness” analysis. First, I agree with the majority that Mr. Snyder has “asserted” a claim based on the Supreme Court’s recent decision in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Maj. Op. at 1125-27. In my view, however, that assertion is not sufficient to afford" }, { "docid": "21808867", "title": "", "text": "its finding that the conviction qualified was based on the elements clause or the residual clause or both. Beeman appealed his convictions but not his sentences, and-on July 8, 2010, this Court affirmed. United States v. Beeman, 386 Fed.Appx. 827, 835 (11th Cir. 2010). On June 26, 2015, the United States Supreme Court held that the ACCA’s residual clause is unconstitutionally vague. Johnson, 135 S.Ct. at 2563. And in April 2016, the Court held that the Johnson decision is retroactively applicable to cases on collateral review. Welch v. United States, 578 U.S. -, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016). On June 7, 2016, Beeman filed his § 2255 motion, attacking his ACCA-en-hanced sentences for his firearm and ammunition offenses. His argument proceeded in three parts. First, he contended that the Johnson decision invalidated his ACCA sentences because when he was sentenced in 2009 his Georgia conviction for aggravated assault would have qualified as a violent felony under the residual clause of the ACCA. Second, he pointed out that his aggravated assault conviction was not a violent felony under the enumerated offenses clause because assault is not included in that list of crimes. And third, he argued that a conviction under the Georgia aggravated assault statute does not now qualify as a violent felony under the elements clause. In making that argument about the elements clause he relied heavily on the Supreme Court’s 2013 decision in Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which is one in a line of Supreme Court decisions describing how federal courts should determine whether an offense qualifies as a predicate offense under the ACCA’s enumerated offenses and elements clauses. See Mathis v. United States, 579 U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016); Descamps, 133 S.Ct. 2276; Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The district court denied Beemaris § 2255 motion as untimely and, alterna tively, on the merits. It determined that Beeman’s" }, { "docid": "19456688", "title": "", "text": "570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ); see United States v. Robinson , 844 F.3d 137, 141 (3d Cir. 2016) (explaining the various rationales for the categorical approach). U.S.S.G. § 4B1.2(a)(1) ; see Chapman , 866 F.3d at 134 (quoting United States v. Brown , 765 F.3d 185, 189 (3d Cir. 2014) ); see also United States v. Castleman , --- U.S. ----, 134 S.Ct. 1405, 1415, 188 L.Ed.2d 426 (2014). Chapman , 866 F.3d at 134. Brown , 765 F.3d at 189 (citing Descamps , 570 U.S. at 261, 133 S.Ct. 2276 ); Chapman , 866 F.3d at 134 ; see Mathis , 136 S.Ct. at 2251-52. Mathis , 136 S.Ct. at 2251-52 ; Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Moncrieffe v. Holder , 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ; see Mathis , 136 S.Ct. at 2253 (explaining that the categorical approach \"treats such facts as irrelevant\"). Moncrieffe , 569 U.S. at 191, 133 S.Ct. 1678 (internal quotation marks omitted). See id. Descamps , 570 U.S. at 257, 262, 133 S.Ct. 2276 (explaining that a statute is divisible if it \"comprises multiple, alternative versions of the crime\"). Robinson , 844 F.3d at 143 (internal quotation marks omitted). Brown , 765 F.3d at 189-90 (quoting Taylor , 495 U.S. at 602, 110 S.Ct. 2143 ; Shepard v. United States , 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ). Descamps , 570 U.S. at 263-64, 133 S.Ct. 2276 ; see Mathis , 136 S.Ct. at 2256. Mathis , 136 S.Ct. at 2253-54. 2010 PSR & 2017 PSR ¶ 38. 18 Pa. C.S. § 2702(a)(1)-(6) (1998); see id. § 2301 (defining \"Deadly weapon,\" \"Bodily injury,\" and \"Serious bodily injury\"); see also id. § 901(a) (defining \"attempt\"). Because, \"[u]nder the categorical approach, we look to the elements of the statute as it existed at the time of the prior conviction,\" United States v. Dahl , 833 F.3d 345, 355 (3d Cir. 2016), we confine our analysis to the" }, { "docid": "9278582", "title": "", "text": "to determine the underlying conduct from years-old or even decades-old documents with varying levels of factual detail. See Taylor v. United States , 495 U.S. 575, 601-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The factual statements that are contained in those documents are often \"prone to error.\" Mathis v. United States , 579 U.S. ----, ----, 136 S.Ct. 2243, 2252, 195 L.Ed.2d 604 (2016). The categorical approach avoids the unfairness of allowing inaccuracies to \"come back to haunt the defendant many years down the road.\" Id. , at ----, 136 S.Ct., at 2253. The Court has echoed that reasoning time and again. See, e.g. , Dimaya , 584 U.S., at ----, 138 S.Ct., at 1218 (plurality opinion); Johnson , 576 U.S., at ----, 135 S.Ct., at 2561 ; Descamps v. United States , 570 U.S. 254, 270, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ; Chambers v. United States , 555 U.S. 122, 125, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). Second , in the prior-conviction cases, the Court insisted on the categorical approach to avoid \"Sixth Amendment concerns.\" Descamps , 570 U.S. at 269, 133 S.Ct. 2276. The Sixth Amendment, as interpreted by this Court's precedents, does not allow a judge (rather than a jury) to make factual determinations that increase the maximum penalty. See Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Court has read its Sixth Amendment precedents to require the categorical approach. Under the categorical approach, the judge looks only to the fact of conviction and the statutory definition of the prior offense. The Court has reiterated those Sixth Amendment concerns in countless categorical-approach cases. See, e.g. , Dimaya , 584 U.S., at ----, 138 S.Ct., at 1218 (plurality opinion); Mathis , 579 U.S., at ----, 136 S.Ct., at 2252 ; Shepard v. United States , 544 U.S. 13, 24-25, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (plurality opinion); Taylor , 495 U.S. at 601, 110 S.Ct. 2143. In short, the Court in Johnson and Dimaya employed something akin to the constitutional avoidance doctrine to read" }, { "docid": "9223212", "title": "", "text": "in light of the long line of cases just cited. See United States v. Borders, 829 F.3d 558, 564 (8th Cir. 2016) (\"Plain error means an error that is clear under current law.\"); United States v. Briggs, 820 F.3d 917, 921 (8th Cir. 2016) (explaining that for an error to be plain, it must be \" 'obvious' or 'clear under current law' \" (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ) ). Consequently, we hold that the district court did not commit plain error when it reimposed Darden's original sentence at the 2017 hearing. B. Darden's Attempted Assault Convictions We turn now to the arguments Darden preserved at the 2016 resentencing. There, he argued that his 2003 and 2004 attempted assault convictions do not constitute violent felonies under the ACCA because of the Supreme Court's decisions in Johnson v. United States, --- U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Mathis v. United States, --- U.S. ----, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). The district court disagreed, holding that this Court's decision in United States v. Alexander, 809 F.3d 1029 (8th Cir. 2016), was on point and compelled the opposite conclusion. \"Mr. Darden's indictments for assaults on a law enforcement officer second degree are all similar to the description of the indictment at issue in Alexander,\" the district court explained, and \"[t]he Supreme Court's decision in Mathis does not change this result.\" Darden now renews his argument that his attempted assault convictions are not violent felonies. We \"review[ ] de novo the determination that a conviction is a violent felony under the ACCA.\" United States v. Myers, 896 F.3d 866, 868 (8th Cir. 2018), petition for cert. filed, No. 18-6859 (U.S. Nov. 26, 2018). \"A violent felony under the ACCA is 'any crime punishable by imprisonment for a term exceeding one year ... that-(i) has as an element the use, attempted use, or threatened use of physical force against the person of another.\" Id. (quoting 18 U.S.C. § 924(e)(2)(B) ). We determine whether a prior conviction is a" }, { "docid": "12148282", "title": "", "text": "Mathis regarding the use of the categorical approach under ACCA, applying the categorical approach to § 4B1.5 avoids possible unfairness to defendants that would result from basing an increased penalty on something not legally necessary to a prior conviction. Mathis, 136 S.Ct. at 2253. . Because Pavulak was litigated before Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), which extended Apprendi to mandatory-minimum sentences, the defendant advanced an Apprendi claim that § 3559(e)(1) increased his maximum punishment, claiming this punishment would otherwise be only fifty years under 18 U.S.C. § 2251(e). Pavulak, 700 F.3d at 673. Instead of disposing of the defendant’s claim on the ground that Apprendi does not apply to recidivist enhancements, see Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, we embarked on an extensive analysis of whether the defendant's statutory maximum was increased by § 3559(e)(1), Pavulak, 700 F.3d at 673. This inquiry required determining what the statutory maximum would have been under § 2251(e), which depended on whether the defendant had two or more prior convictions \"relating to the sexual exploitation of children,” in which case § 2251(e) would supply the same life maximum as § 3559(e)(1). Pavulak, 700 F.3d at 673-75. . The categorical approach was not developed to avoid Apprendi violations — the categorical approach predates Apprendi by ten years — but to guarantee fairness in recidivist sentencing by avoiding inquiries into the factual circumstances underlying prior convictions. See Shepard, 544 U.S. at 24-26, 125 S.Ct. 1254 (noting Apprendi concerns as a “further reason” for the categorical approach); Taylor, 495 U.S. at 600-02, 110 S.Ct. 2143. The avoidance of an Apprendi violation is just one justification for the approach. See Mathis, 136 S.Ct. at 2252. . The term \"sexual contact” is used in other sections in Chapter 109A. See 18 U.S.C. § 2244 (defining when \"sexual contact” is “abusive sexual contact”); id. § 2243. . See State v. Row, 1994 WL 45358, at *7 (Del. Super. Ct. Feb. 1, 1994) (unpublished) (\"Under the ... statute, the contact must be something more than a mere touching ..., but" }, { "docid": "21818644", "title": "", "text": "S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and in part by the Sixth Amendment concerns that would arise if the imposition of the ACCA’s mandatory minimum sentence were based on the actual facts underlying prior convictions as found by the sentencing judge, see Shepard, 544 U.S. at 24, 125 S.Ct. 1254; Taylor, 495 U.S. at 601, 110 S.Ct. 2143; United States v. Faust, 853 F.3d 39, 50 (1st Cir. 2017) (citing Mathis, 136 S.Ct. at 2252, and Descamps, 133 S.Ct. at 2288). The categorical approach proceeds in different ways for different portions of the ACCA. To determine whether a conviction for a crime falls within the “force clause” or the “enumerated offense clause” of the violent felony definition, see United States v. Starks, 861 F.3d 306, 314 (1st Cir. 2017) (defining these terms), courts ask whether there is any (realistic) way of committing the crime that does not satisfy the force clause or the elements of the generic version of the enumerated offense. See, e.g., Mathis, 136 S.Ct. at 2248 (enumerated offense clause); Faust, 853 F.3d at 51 (force clause). To determine whether a conviction for a crime falls within the now-invalidated “residual clause” of the violent felony definition, see Starks, 861 F.3d at 314, courts asked whether the “ordinary case” of a conviction for that crime created a risk of physical injury that exceeded a difficult-to-specify threshold. See, e.g., Johnson, 135 S.Ct. at 2557-59. In this circuit, when analyzing whether a prior conviction is a serious drug offense, we have followed the approach used with the force clause and the enumerated offenses clause and asked whether (as determined from the crime’s definition and state cases implementing that definition) every realistically possible way of committing the offense satisfies the definition of a serious drug offense. See United States v. Mulkern, 854 F.3d 87, 96-97 (1st Cir. 2017); United States v. Whindleton, 797 F.3d 105, 109 (1st Cir. 2015) (“Since Whindleton’s record of conviction does not specify on what theory he was convicted, we must ensure that" }, { "docid": "19628450", "title": "", "text": "at 600, 110 S.Ct. 2143. That rule can seem counterintuitive: In some cases, a sentencing judge knows (or can easily discover) that the defendant carried out a \"real\" burglary, even though the crime of conviction also extends to other conduct. No matter. Under ACCA, Taylor stated, it is impermissible for \"a particular crime [to] sometimes count towards enhancement and sometimes not, depending on the facts of the case.\" Id., at 601, 110 S.Ct. 2143. Accordingly, a sentencing judge may look only to \"the elements of the [offense], not to the facts of [the] defendant's conduct.\" Ibid . That simple point became a mantra in our subsequent ACCA decisions. At the risk of repetition (perhaps downright tedium), here are some examples. In Shepard : ACCA \"refers to predicate offenses in terms not of prior conduct but of prior 'convictions' and the 'element[s]' of crimes.\" 544 U.S., at 19, 125 S.Ct. 1254 (alteration in original). In James v. United States : \"[W]e have avoided any inquiry into the underlying facts of [the defendant's] particular offense, and have looked solely to the elements of [burglary] as defined by [state] law.\" 550 U.S. 192, 214, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). In Sykes v. United States : \"[W]e consider [only] the elements of the offense [,] without inquiring into the specific conduct of this particular offender.\" 564 U.S. 1, 7, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (quoting James, 550 U.S., at 202, 127 S.Ct. 1586 ; emphasis in original). And most recently (and tersely) in Descamps : \"The key [under ACCA] is elements, not facts.\" 570 U.S., at ----, 133 S.Ct., at 2283. Our decisions have given three basic reasons for adhering to an elements-only inquiry. First, ACCA's text favors that approach. By enhancing the sentence of a defendant who has three \"previous convictions\" for generic burglary, § 924(e)(1) -rather than one who has thrice committed that crime-Congress indicated that the sentencer should ask only about whether \"the defendant had been convicted of crimes falling within certain categories,\" and not about what the defendant had actually done. Taylor, 495 U.S., at 600," }, { "docid": "9050294", "title": "", "text": "rejected vagueness challenges to the ACCA's residual clause in James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), overruled by Johnson II, --- U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569, and Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011), overruled by Johnson II, --- U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569, and those decisions were controlling at the time of Lassend's sentencing and direct appeal. Lassend, 2017 WL 2960518, at *8. Moreover, Lassend's direct appeal was filed, argued, and decided before the Supreme Court granted certiorari in Johnson II. Id. As such, the district court found that a Johnson II claim was not reasonably available to Lassend at the time of his direct appeal, thereby establishing cause. Id. The district court also reasoned that the prejudice inquiry merged with Lassend's merits claims because if Lassend could show that he should not have been sentenced under the ACCA in light of Johnson II, \"his failure to raise that claim obviously resulted in prejudice.\" Id. As to the merits of Lassend's claims, the district court first found that, under clear First Circuit precedent, Lassend's Massachusetts ADW conviction qualifies as a violent felony under the ACCA's force clause. Id. at *10. The district court also found that Lassend's New York attempted second-degree assault conviction qualifies as an ACCA predicate under the force clause. Id. at *10-12. Applying the modified categorical approach, the district court determined that Lassend had been convicted under New York Penal Law § 120.05(7) because the relevant Shepard documents-the state court indictment and the plea-colloquy transcript-showed that Lassend had pled guilty to the second count of the indictment, the language of which mirrored that of § 120.05(7). Lassend, 2017 WL 2960518, at *11. The district court rejected Lassend's argument that a conviction under § 120.05(7) does not constitute a violent felony because a perpetrator can violate subsection (7) without using violent force in causing injury. Id. at *11-12. In doing so, the district court noted that the Supreme Court's decision in United States v. Castleman, 572 U.S." }, { "docid": "12148254", "title": "", "text": "569 (2015), the Supreme Court explained that the “categorical approach” applies notwithstanding a predicate statute’s reference to conduct. The Court found the Armed Career Criminal Act’s (ACCA’s) residual clause void for vagueness because application of the categorical approach compelled courts to determine the unconstitutionally vague “ordinary case” of a predicate statute’s violation. Id. at 2557-58. But the Court upheld the use of the categorical approach generally, and rejected the argument by the government (and Justice Alito in dissent) that the “conduct” language of ACCA should trigger a factual approach. See id. at 2561-62 (“[T]he dissent urges us to save the residual clause from vagueness by interpreting it to refer to the risk posed by the particular conduct in which the defendant engaged.... In other words, the dissent suggests that we jettison for the residual clause (though not for the enumerated crimes) the categorical ap-proach_We decline the dissent’s invitation.”). The Johnson Court explained that the important textual reference for triggering the categorical approach is “conviction,” not “conduct.” Id. at 2562 (“This emphasis on convictions indicates that ‘Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.’ ” (quoting Taylor, 495 U.S. at 600, 110 S.Ct. 2143)). In a recent decision, Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), the Court emphasized that a sentencing enhancement’s use of the phrase “conviction” indicates Congress’s intent to apply the categorical approach. 136 S.Ct. at 2252 (“By enhancing the sentence of a defendant who has three ‘previous convictions’ ... rather than one who has thrice committed that crime — Congress indicated that the sentencer should ask only about whether ‘the defendant had been convicted of crimes falling within certain categories,’ and not about what the defendant had actually done.” (quoting Taylor, 495 U.S. at 600, 110 S.Ct. 2143)). Johnson and Mathis looked at ACCA, 18 U.S.C. § 924(e)(l)-(2)(B)(ii), whereas here we examine a part of the Code dealing with repeat sex offenders, 18 U.S.C. § 2426(b)(1)(B). But" }, { "docid": "10667955", "title": "", "text": "Osier, 796 F.3d 597, 603 (6th Cir. 2015) (quoting Mathis, 786 F.3d at 1075). The Supreme Court disagreed with this analysis, reversed the Eighth Circuit, and specifically abrogated this court’s decision in Ozier. Mathis, 136 S.Ct. at 2251 & n.l. It noted that the Iowa Supreme Court has interpreted the state’s burglary statute to list alternative methods of committing a single crime. Id. at 2250 (citing State v. Rooney, 862 N.W.2d 367, 376 (Iowa 2015); State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981)). But “a state crime cannot qualify as an ACCA predicate if its elements are broader than those of a listed generic offense.” Id. at 2251 (citing Taylor, 495 U.S. at 602, 110 S.Ct. 2143). Therefore, the Court held a conviction under the statute cannot serve as an ACCA predicate because the elements of Iowa’s burglary statute “cover a greater swath of conduct than the elements” of generic burglary. Id. In reaching this conclusion, the Court noted that, under generally established principles, “the ‘underlying brute facts or means’ of commission” are irrelevant for purposes of ACCA. Id. “[E]ven if his conduct fits within the generic offense, the mismatch of elements saves the defendant from an ACCA sentence.” Id. Thus, the Court clarified that sentencing courts should engage in “an elements-only inquiry”; “[a]ll that counts under [ACCA] ,.. are ‘the elements of the statute of conviction.’ ” Id. at 2251-52 (quoting Taylor, 495 U.S. at 601, 110 S.Ct. 2143). This is true even if the “sentencing judge knows (or can easily discover) that the defendant carried out a ‘real’ burglary.” Id. at 2251. The Court gave three basic justifications for limiting the ACCA inquiry to elements, rather than treating as divisible a non-generic burglary statute that lists alternative means for satisfying a particular element. First, it determined that ACCA’s text favors this result. Id. at 2252. Second, “a construction of ACCA allowing a sentencing judge to go any further would raise serious Sixth Amendment concerns” because “only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a" }, { "docid": "15335942", "title": "", "text": "same context our court invited the government to file a brief \"setting forth its views on the appropriate disposition of applications by federal defendants for leave to file second or successive motions under 28 U.S.C. § 2255(a) ... in light of the recent decision in Johnson.” This brief is 47 pages long and the government has asked us to file it \"on the docket in future cases where federal defendants seek leave to file a successive Section 2255 motion.” . See Johnson, 135 S.Ct. 2551; Descamps v. United States, - U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013); Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011); McNeill v. United States, 563 U.S. 816, 131 S.Ct. 2218, 180 L.Ed.2d 35 (2011); Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010); United States v. Rodriquez, 553 U.S. 377, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008); Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008); Logan v. United States, 552 U.S. 23, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007); James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). This ongoing uncertainty is despite the fact that ACCA is over thirty years old. Non-ACCA cases may govern the merits of Johnson claims as well. See, e.g., Torres v. Lynch, - U.S. -, 136 S.Ct. 1619, 194 L.Ed.2d 737 (2016); United States v. Castleman, - U.S. -, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014); Moncrieffe v. Holder, - U.S. -, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). . The Supreme Court recently granted a prisoner's petition for certiorari in a case that (just like Miller-El) asks if the Fifth Circuit's COA standard is too strict. See Buck v. Stephens, No. 15-8049, - U.S. -, 136 S.Ct. 2409, 195 L.Ed.2d 779, 2016 WL 531661 (U.S. June 6, 2016). . See, e.g., Ochoa v. Sirmons, 485 F.3d 538, 541 (10th Cir. 2007) (\"This statutory mandate does not direct the appellate court to engage in a preliminary merits assessment. Rather, it focuses our inquiry solely on" }, { "docid": "21818642", "title": "", "text": "relevant state precedent. The statute reads: Any person who trafficks in a controlled substance [as defined to include cocaine] by knowingly or intentionally manufacturing, distributing or dispensing or possessing with intent to manufacture, distribute or dispense or by bringing into the commonwealth a net weight of 18 grams or more of a controlled substance as so defined, or a net weight of 18 grams or more of any mixture containing a controlled substance as so defined shall [be punished by a term of imprisonment that varies depending on weight]. Id. The parties’ dispute focuses on the form of trafficking committed by “bringing into the commonwealth a net weight of 18 grams or more of [cocaine], or a net weight of 18 grams or more of any mixture containing [cocaine].” Id. Bain argues that this form of the offense is not a serious drug offense. He does not dispute that the other forms of trafficking are serious drug offenses. We need not and do not determine whether Bain is right that the “bringing into the commonwealth” form of the offense is not a serious drug offense. Instead, we assume that he is right but conclude that he still cannot satisfy the plain error standard because he cannot establish that the Massachusetts traffick ing statute is clearly “indivisible.” We pause for a moment to explain what that means. When determining whether a prior conviction qualifies as a predicate offense under the ACCA, we do not look at the specific facts of the defendant’s prior conviction. Instead, we use a categorical approach, where we classify crimes as ACCA predicates based on their legal definitions, rather than the facts of the defendant’s particular conviction. See Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2248, 2251-52, 195 L.Ed.2d 604 (2016); Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). The categorical approach is imposed in part by the language of the ACCA, see Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 2562, 192 L.Ed.2d 569 (2015); Shepard v. United States, 544 U.S. 13, 19, 125" }, { "docid": "11818636", "title": "", "text": "EASTERBROOK, Circuit Judge. Thirteen years ago, Robert Yates was sentenced as an armed career criminal under 18 U.S.C. § 924(e). The district court concluded that he had six qualifying prior convictions; the statute provides that three or more require an enhanced sentence. After the Supreme Court held in Samuel Johnson v. United States, — U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), that the “residual clause” in § 924(e)(2)(B)(ii) is unconstitutionally vague, and made that decision retroactive, Welch v. United States, — U.S.-, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), Yates filed this collateral attack. He contends that after Samuel Johnson only two qualifying convictions remain, so that 28 U.S.C. § 2255(f)(3) restarts the time for collateral review. The prosecutor concedes that the petition is timely and that Samuel Johnson knocks out three of the six convictions but maintains that Yates’s conviction of battery by a prisoner, in violation of Wis. Stat. § 940.20(1), qualifies as a violent felony under the “elements clause” of § 924(e)(2)(B)(i) because it “has as an element the use, attempted use, or threatened use of physical force against the person of another”. Samuel Johnson does not affect the elements clause of § 924(e).- See, e.g., Stanley v. United States, 827 F.3d 562 (7th Cir. 2016). The district court agreed with the prosecutor and dismissed this proceeding. 2016 U.S. Dist. Lexis 79058 (W.D. Wis. June 17, 2016). Under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and its successors, such as Descamps v. United States, — U.S.-, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), a court must determine whether a conviction satisfies § 924(e) or a similar recidivist statute by looking at the elements of the crime, no matter what the accused did in fact. We do not know what he did that led to the battery conviction, but the Supreme Court has held that the facts do not matter—indeed that we are usually forbidden to know. See Shepard v. United States, 544 U.S. 13," }, { "docid": "17024817", "title": "", "text": "involving] conduct that presents a serious potential risk of physical injury to another.” See Gov’t Letter Pursuant to Fed. R. App. P. 28(j) (Aug. 12, 2015). A. While Calabretta’s appeal was pending, the United States Supreme Court decided Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which held that an identically worded residual clause in the Armed Career Criminal Act (“ACCA”) was unconstitutional. Under ACCA, defendants are subject to a more severe punishment if they have three or more previous convictions for a “violent felony” — which included, under the statute’s residual clause, “conduct that presents a serious potential risk of physical injury to • another.” 18 U.S.C. § 924(e)(2)(B)(ii). Supreme Court prece dent prior to Johnson had required courts to use a “categorical” approach to determine whether a crime fell within ACCA’s residual clause. See Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011); James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). The categorical approach prescribed that courts “picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents a serious potential risk of physical injury.” Johnson, 135 S.Ct. at 2557 (quoting James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)). But in Johnson, the Supreme Court overruled its earlier cases — Sykes and James — that required courts to use the categorical approach to determine whether a crime was included in ACCA’s residual clause. Rather, the Supreme Court invalidated, as unconstitutionally vague, ACCA’s residual clause. The Supreme Court held that defendants were denied due process of law when their sentences were increased after application of ACCA’s residual clause because the “indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges.” Johnson, 135 S.Ct. at 2557. The Court ruled that the indeterminacy inherent in both inquiries under the categorical approach — (1) imagining the conduct in “the ordinary case” of a crime, and (2) imagining" }, { "docid": "21818643", "title": "", "text": "form of the offense is not a serious drug offense. Instead, we assume that he is right but conclude that he still cannot satisfy the plain error standard because he cannot establish that the Massachusetts traffick ing statute is clearly “indivisible.” We pause for a moment to explain what that means. When determining whether a prior conviction qualifies as a predicate offense under the ACCA, we do not look at the specific facts of the defendant’s prior conviction. Instead, we use a categorical approach, where we classify crimes as ACCA predicates based on their legal definitions, rather than the facts of the defendant’s particular conviction. See Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2248, 2251-52, 195 L.Ed.2d 604 (2016); Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). The categorical approach is imposed in part by the language of the ACCA, see Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 2562, 192 L.Ed.2d 569 (2015); Shepard v. United States, 544 U.S. 13, 19, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and in part by the Sixth Amendment concerns that would arise if the imposition of the ACCA’s mandatory minimum sentence were based on the actual facts underlying prior convictions as found by the sentencing judge, see Shepard, 544 U.S. at 24, 125 S.Ct. 1254; Taylor, 495 U.S. at 601, 110 S.Ct. 2143; United States v. Faust, 853 F.3d 39, 50 (1st Cir. 2017) (citing Mathis, 136 S.Ct. at 2252, and Descamps, 133 S.Ct. at 2288). The categorical approach proceeds in different ways for different portions of the ACCA. To determine whether a conviction for a crime falls within the “force clause” or the “enumerated offense clause” of the violent felony definition, see United States v. Starks, 861 F.3d 306, 314 (1st Cir. 2017) (defining these terms), courts ask whether there is any (realistic) way of committing the crime that does not satisfy the force clause or the elements of the generic version of the" }, { "docid": "5881407", "title": "", "text": "LYNCH, Circuit Judge. This consolidated appeal arises from the denials of three federal post-conviction relief petitions filed under 28 U.S.C. § 2255. Richard Dimott, Wayne N. Collamore, and Charles H. Casey, Jr., each pled guilty to a federal firearm offense and had a history of Maine state burglary convictions. On collateral review, all three allege that they no longer qualify for a sentence enhancement under the Armed Career Criminal Act (“ACCA”) because the ACCA’s residual clause was invalidated by Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (“Johnson II\"). Each petitioner filed his federal habeas petition outside of the one-year statute of limitations under 28 U.S.C. § 2255(f)(1). All three nevertheless contend on appeal that their petitions are timely under 28 U.S.C. § 2255(f)(3) because Johnson II, which is retroactively applicable, is the source of their claims. Specifically, Dimott, Collamore, and Casey argue that they were sentenced pursuant to the ACCA’s (now-void) residual\" clause, so their sentences must be vacated, and they cannot be resentenced under the ACCA’s enumerated clause in light of Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), a case that is not retroactively applicable. The district courts in all three cases dismissed the petitions on procedural grounds. We affirm the dismissals. All three petitions are untimely because they raise Mathis, not Johnson II claims, and Mathis does not reset the one-year statute of limitations under § 2255(f)(3). The petitioners have no Johnson II claims because they have not shown that their original ACCA sentences were based solely on the residual clause. I. We first determine, as to each petitioner, whether the district court sentenced him pursuant to the enumerated or (the separate) residual clause of the ACCA. Accordingly, we give the relevant procedural history of each case. A. Dimott Richard Dimott pled guilty to one count of being a felon in possession of a firearm on March 30,2007, in violation of 18 U.S.C. §§ 922(g)(1) and 942(e). Based on his eight previous state convictions in Maine for burglary, see Me. Rev. Stat. Ann. tit." }, { "docid": "1952495", "title": "", "text": "U.S. ---, 136 S.Ct. 2243, 2251, 195 L.Ed.2d 604 (2016) (recognizing “a Circuit split over whether ACCA’s general rale—that a defendant's crime of conviction can count as a predicate only if its elements match those of a generic . offense—gives way when a statute happens to list various means by which a defendant can satisfy an element”) (citing United States v. Mathis, 786 F.3d 1068 (8th Cir. 2015) (recognizing such an exception); United States v. Ozier, 796 F.3d 597 (6th Cir. 2015) (same); United States v. Trent, 767 F.3d 1046 (10th Cir. 2014)(same); Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014) (rejecting that exception); Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014) (same)). . — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). . See id., at 2256 (explaining that a \"sentencing court faced with an alternatively phrased statute” must first decide if the \"listed items are elements or means. If they are elements, the court should [apply the categorical approach] .... But if instead they are means, the court has no call to decide which of the statutory alternatives was at issue in the earlier prosecution.”). .' See id. at 2249 (explaining that the jurors in the Mathis case did not need to make any specific finding as to where the crime occurred, where the statute merely \"itemize[d] the various places that crime could occur as disjunctive factual scenarios rather than separate elements”). . Id. at 2250. . Id. at 2256. . Id. at 2250. . United States v. Mathis, 786 F.3d 1068, 1075 (8th Cir. 2015). . Mathis, 136 S.Ct. at 2250 (citing State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981)). . 832 F.3d 569, 574-75, No. 15-10067, 2016 WL 4254372, at *4 (5th Cir. Aug. 11, 2016) (citations omitted). . Mathis, 136 S.Ct. at 2256. . Landrian v. State, 268 S.W.3d 532, 537 (Tex. Crim. App. 2008) (citations omitted). . Price v. State, 457 S.W.3d 437, 442 (Tex. Crim. App. 2015) (emphasis added) (holding that \"the offense defined by sections 22.01(a)(1) and (b)(2)(B) has three parts, two of which include culpable mental states”" } ]

[ { "docid": "15424714", "title": "", "text": "or any other arrangement, to engage in air transportation. ...” 49 U.S.C. app. § 1301(3) (1982). Accordingly, petitioner claims that SAA is not subject to the terms of section 306(a)(2) because it is not a “citizen of the United States”; and therefore, that it should not have been the object of the Final Order implementing that section. We reject this ingenious interpretation of the Act because in context it is clear that the words “air carrier” apply explicitly to a South African carrier. As “air carrier” is immediately followed by “designated by the Government of South Africa under the Agreement,” it is clear that we are not dealing with U.S. citizens. The Agreement requires that designated air carriers be owned or controlled by nationals of the designating country or else the permit issued by the other country may be revoked: Each contracting party reserves the right to withhold or revoke a certificate or permit to an air carrier designated by the other contracting party in the event that it is not satisfied that substantial ownership and effective control of such carrier are vested in nationals of the other contracting party____ Agreement, art. VI, 61 Stat. at 3059. Accordingly, we read “air carrier designated by the Government of South Africa under the Agreement” as clearly distinguishable from “air carrier” standing alone. III. Conclusion The Secretary correctly interpreted section 306(a)(2) of the Anti-Apartheid Act. Section 306(a)(2) unambiguously calls for expedited revocation of any permit issued to a South African air carrier pursuant to the Agreement whether or not the revocation may later be found to constitute a breach of the Agreement. The petition to set aside DOT Final Order 86-11-29 is therefore Denied. . Agreement between the Government of the United States of America and the Government of the Union of South Africa Relating to Air Services Between Their Respective Territories, May 23, 1947, 61 Stat. 3057, T.I.A.S. No. 1639, as amended by Agreement between the United States of America and the Union of South Africa, Nov. 2, 1953, 4 U.S.T. 2205, T.I.A.S. No. 2870, and Air Transport Services Agreement, June 28," } ]

[ { "docid": "15163611", "title": "", "text": "of conveying the defamatory implication that Southern Air was in partnership with the South African government. 877 F.2d at 1014-15. In particular, the court considered whether the juxtaposition of visual graphics and commentary could imply the defamatory meaning. The court noted that the phrase “South Africa Connection” was emblazoned not on the portion of the film showing the Southern Air plane, but over a different segment designed to emphasize alleged clandestine dealings between the CIA and the South African government in support of the Contras. While with only a little imagination a viewer might infer that Southern Air was part of the “South Africa Connection,” the court held that nothing in the defendant’s specific treatment of Southern Air suggested that it was reasonable to impute such a meaning to the broadcasts. Id. at 1015-16. One of our sister circuits offers a more. cogent example of the limits of defamation by implication regarding materially true reports. In Janklow v. Newsweek, Inc., the Eighth Circuit held that a report of the true fact of a 14-year-old’s rape allegation was not capable of bearing the defamatory meaning that Janklow was actually guilty of the alleged rape, even though the report omitted the facts that (1) Janklow had passed a lie-detector test; (2) the alleged victim had been declared “untestable” because of her emotional display during her polygraph exam; (3) a medical exam showed no signs of rape; and (4) numerous federal authorities had called the rape allegations unfounded. 759 F.2d 644, 648-49 (8th Cir.1985), reheard on other grounds, 788 F.2d 1300 (8th Cir.) (en banc), cert. denied, 479 U.S. 883, 107 S.Ct. 272, 93 L.Ed.2d 249 (1986). These three cases — McBride, Southern Air, and Janklow —suggest that if a communication, viewed in its entire context, merely conveys materially true facts from which a defamatory inference can reasonably be drawn, the libel is not established. But if the communication, by the particular manner or language in which the true facts are conveyed, supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference, the communication will be deemed capable of" }, { "docid": "18813745", "title": "", "text": "Weir Shipping Limited (Weir Shipping). Although Weir Shipping, as Bank Line’s corporate successor, is the party in this action presently representing the interests of the Andrew Weir Group, for purposes of clarity we refer to the entity as Bank Line. The other entity, South Africa Marine Corp., Ltd. (Safmarine), a South African wholly-owned corporate subsidiary of Safma-rine and Rennies Holding Limited (Safren Group), had a division similarly engaged in cargo trade between the United States and South Africa. The Safren Group is a highly-diversified, publicly-traded South African corporation. Neither Bank Line nor Safmarine had marine terminal facilities in the Port of New York; both contracted for these services. During the period they operated out of the Port of New York, the two respective divisions of these large companies, that is Bank Line and Safmarine, were members of the New York Shipping Association (NYSA or Shipping Association), an organization of ship operators, agents, stevedores and other shipping-related businesses. As members of the Shipping Association, Bank Line and Safma-rine were bound by its bargaining agreement with the International Longshoreman’s Association (ILA), the collective bargaining representative for the Port of New York’s longshoremen. Pursuant to the labor contract, steamship carriers pay to the Shipping Association assessments for its employees’ benefits based on total tonnage loaded and unloaded from the carriers’ vessels by longshoremen in the Port of New York. The Shipping Association remits a portion of the assessments it receives from its members to the NYSA-ILA Pension Trust Fund (Fund), which is managed by a board of trustees appointed by the ILA and the NYSA. See generally Korea Shipping Corp. v. NYSA-ILA Pension Trust Fund, 880 F.2d 1531, 1533-35 (2d Cir.1989) (explaining the foregoing in greater detail). Bank Line and Safmarine regularly paid assessments through the Shipping Association to the Fund into the year 1988. Meanwhile, political pressure had been mounting during the mid-1980s for American business to cease commercial trading with the then apartheid-sponsoring government of South Africa, resulting in a precipitous drop in American trade with that nation. The economic fallout from the trade embargo had adverse economic consequences on Bank" }, { "docid": "15424706", "title": "", "text": "effect. We conclude that the clear meaning of the amendment coupled with the absence of any contrary view in the legislative record requires the conclusion that Congress intended the Secretary to give immediate effect to its mandate. 2. Reconciliation of Section 306(a) and the Agreement SAA argues that notwithstanding the evident meaning of section 306 and its legislative history, Supreme Court precedent nevertheless requires that it be construed in a manner that will not require the United States to violate its obligations under an executive agreement. SAA points out that Article VI of the Agreement specifies the circumstances under which a permit may be revoked and contends that this court must construe section 306 in a manner consistent with the permit revocation provision of the Agreement. In debate Senator Lugar asserted that the Sarbanes amendment would require this country to violate the Agreement, and based his opposition to its adoption on this interpretation. Senator Sarbanes, on the other hand, argued that his amendment would not breach the Agreement: “[I]t is my contention that we are not unilaterally abrogating the agreement. On the contrary we are working within the parameters of the agreement.” 132 Cong.Rec. S11,713-14. Senator Sarbanes argued that South Africa had failed to implement an “objective” expressed in the Agreement, namely, “to ‘foster and encourage the widest possible distribution of the benefits of air travel for the [sic] good of mankind ... and to stimulate international [sic] travel as a means of promoting friendly understanding and good will among peoples [sic].’ ” 132 Cong.Rec. S11,712 (quoting Agreement Annex § IV(A), 61 Stat. at 3062). Whatever the merits of this exchange between Senators Lugar and Sarbanes, there is no indication in the legislative history to suggest that in adopting the Anti-Apartheid Act as amended, Congress intended to abrogate any provision of the Agreement. Nor must we decide whether section 306(a) in fact violates any such provision. Cf. Whitney v. Robertson, 124 U.S. 190, 195, 8 S.Ct. 456, 458, 31 L.Ed. 386 (1888) (“[W]hen a law is clear in its provisions, its validity cannot be assailed before the courts for want" }, { "docid": "15424694", "title": "", "text": "under which permits issued pursuant to the Agreement may be revoked. Agreement, art. VI, 61 Stat. at 3059-60. Section 306(a)(2) of the Act, which was offered in the Senate as a floor amendment, provides: Ten days after the enactment of this Act, the President shall direct the Secretary of Transportation to revoke the right of any air carrier designated by the Government of South Africa under the Agreement to provide service pursuant to the Agreement. On October 10, 1986, the Secretary of State delivered the one-year termination notice to the South African Ambassador, and seventeen days later the President issued Executive Order 12,571 directing the Secretary of Transportation (“Secretary”) to take the steps specified in section 306(a)(2) of the Act. Exec. Order No. 12,571, 51 Fed.Reg. 39,505 (1986). The Secretary thereupon issued Department of Transportation (“DOT”) Final Order 86-11-29 (“Final Order”) in which she initiated the steps required to effect an immediate revocation of South African Airways’ permit. As required by section 801(a) of the Federal Aviation Act of 1958 (“Aviation Act”), 49 U.S.C. app. § 1461(a) (1982), the Final Order was transmitted to the President for review, at which point he could have exercised his prerogative under that section to disapprove the Final Order on foreign policy or national security grounds. He declined to do so, and SAA’s permit was accordingly revoked effective November 16, 1986. SAA challenges the Secretary’s action as not required by the Act, as in violation of the Agreement, and consequently, both in conflict with Supreme Court precedent and illegal under section 1102(a) of the Aviation Act, which provides: In exercising and performing their powers and duties under this chapter, the [Civil Aeronautics] Board and the Secretary of Transportation shall do so consistently with any obligation assumed by the United States in any treaty, convention, or agreement that may be in force between the United States and any foreign country____ 49 U.S.C. app. § 1502(a) (1982). In response, the Secretary challenges the statutory jurisdiction of this court to review the Final Order, questions the propriety of such a review under the “political question” doctrine, and" }, { "docid": "23505409", "title": "", "text": "the air waybill provided, in part: The agreed stopping places (which may be altered by Carrier in case of necessity) are those places, except the place of departure and the place of destination, set forth on the face hereof or shown in Carrier's timetables as scheduled stopping places for the route. Brink’s concedes that the pertinent SAA timetable lists a stopover in the Cape Verde Islands. . The FSIA confers jurisdiction over foreign states. See 28 U.S.C. § 1330 (granting jurisdic tion over certain claims against foreign states). Because SAA is an instrumentality of the government of South Africa, or a separate legal entity owned by the Republic of South Africa and not a citizen of the United States, SAA is a foreign state within the meaning of the FSIA. 28 U.S.C. § 1603(b). The FSIA therefore applies to this dispute. . Brink’s seeks to recover as the consignee of the goods which were the subject of the contract of carriage between SAA and Rustenberg, another South African concern. In the absence of any contrary indication, we presume that these two South African concerns formed their contract in South Africa. . SAA was responsible for transporting the Rus-tenberg precious metals from Jan Smuts Airport to John F. Kennedy International Airport without loss or damage. The bulk of SAA's work with respect to the Rustenberg cargo was guarding the cargo before loading, during loading, and after loading until take-off. . Article 8 provides, in pertinent part: The air waybill shall contain the following particulars: (c) The agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right the alteration shall not have the effect of depriving the transportation of its international character; (e) The name and address of the first carrier; (h) The number of packages, the method of packing, and the particular marks or numbers upon them; (i) The weight, the quantity, the volume, or dimensions of the goods. Warsaw Convention, Art. 8. . Article 9 provides: If the carrier accepts goods without an" }, { "docid": "23505393", "title": "", "text": "likely occurred in South Africa. The Republic of South Africa certainly has a greater interest than New York in the alleged wilful misconduct or gross negligence of SAA, an instrumentality of its government, and the SAP. SAA is the only party on this record with any relationship to New York, and that is only through a local SAA office. The discovery at Kennedy Airport, that several boxes of cargo were missing, is the only contact New York has had with this dispute, and that contact is of limited significance. Thus, New York’s nexus with this case is not substantial. In short, all significant relationships and events point toward South Africa as the sovereign with the greatest interest in having its law applied to this controversy. South African law governing employer-employee liability may be in conflict with New York law. However, New York’s nexus with this case is not so substantial that application of South African law would threaten public policy as expressed in New York’s common law master-servant rule. Moreover, holding SAA liable for employee theft would not be so “obnoxious” to New York public policy. Cooney, 81 N.Y.2d at 79, 595 N.Y.S.2d at 927, 612 N.E.2d at 285. Thus, New York choice of law doctrine requires application of South African law to this controversy. D. Remand In accordance with the foregoing, we conclude that Article 25 of the Warsaw Convention defers to the law of the forum jurisdiction for a determination of what conduct constitutes wilful misconduct by an air carrier. In the United States federal courts, that law is the substantive law of the forum jurisdiction, including the forum’s choice of law rules. In this ease, New York choice of law rules require application of South African law. Thus, to the extent that the district court relied on New York master-servant law in granting SAA partial summary judgment, we reverse the judgment of the district court and remand the cause for a determination of liability under South African law. If theft by an employee acting in the course of employment constitutes wilful misconduct by an employer-air carrier under" }, { "docid": "19656007", "title": "", "text": "Africa. A00754-55. Professor Kader Asmal, the Minister of Education, also assailed the prosecution of these eases. He told the Parliament: South Africa must settle this issue for themselves and does not need the help of ambulance chasers and contingency fee operators, whether in Switzerland, the Netherlands, or the United States of America. As South Africans, we have effectively dealt with our own historical challenges and we will continue to do so. It is part of our sovereign right. A00758. On April 16, 2003, the day after the addresses quoted above, the Cabinet of the Republic of South Africa resolved that “[i]t remains the right of the [Government [of South Africa] to define and finalise issues of reparations, both nationally and internationally.” A00803. Against this backdrop, the then-Minister of Justice, Penuell Mpa-pa Maduna, filed a declaration in the district court which set forth the Republic of South Africa’s view of various cases pending in the United States against corporations that did business with and in South Africa during the apartheid period, including the cases at issue here. The statement summarizes the actions undertaken by the Republic of South Africa “to repair the damage caused by the apartheid system through a broad programme of socioeconomic reparations which has at its heart, the betterment of the lives of the previously disadvantaged.” A00801. Then, addressing the prosecution of these cases, he argued that the remedies sought — including “the demand for billions of dollars in damages to be distributed by the U.S. courts” — are “inconsistent with South Africa’s approach to achieving its long term goals.” A00805. Specifically, he continued: Permitting this litigation to go forward will, in the government’s view, discourage much-needed direct foreign investment in South Africa and thus delay the achievement of our central goals. Indeed, the litigation could have a destabil-ising effect on the South African economy as investment is not only a driver of growth, but also of employment. One of the structural features of the South African economy, and one of the terrible legacies of apartheid, is its high level of unemployment and its by-product, crime. Foreign direct" }, { "docid": "23505408", "title": "", "text": "Convention. CONCLUSION To the extent that the district court granted partial summary judgment to SAA on the basis of New York law regarding employer-employee liability, the judgment is reversed and the cause remanded for further proceedings consistent with this opinion. To the extent that the district court granted partial summary judgment to SAA on the basis that the air waybill satisfied the requirements of Article 8 of the Warsaw Convention, the judgment is affirmed. . An air waybill is a written document describing the shipping arrangement between the air carrier and the shipper. It includes, inter alia, the point of origin and destination and a description of the goods included in the shipment. See Warsaw Convention, Arts. 5-16; see also Black's Law Dictionary 1593 (6th ed. 1990). . Article 13(3) authorizes the consignee \"to put into force against the carrier the rights which flow from the contract of transportation.” Warsaw Convention, Art. 13(3). . Although the air waybill did not identify Ilha Do Sal specifically in the \"Routing and destination” space, the reverse side of the air waybill provided, in part: The agreed stopping places (which may be altered by Carrier in case of necessity) are those places, except the place of departure and the place of destination, set forth on the face hereof or shown in Carrier's timetables as scheduled stopping places for the route. Brink’s concedes that the pertinent SAA timetable lists a stopover in the Cape Verde Islands. . The FSIA confers jurisdiction over foreign states. See 28 U.S.C. § 1330 (granting jurisdic tion over certain claims against foreign states). Because SAA is an instrumentality of the government of South Africa, or a separate legal entity owned by the Republic of South Africa and not a citizen of the United States, SAA is a foreign state within the meaning of the FSIA. 28 U.S.C. § 1603(b). The FSIA therefore applies to this dispute. . Brink’s seeks to recover as the consignee of the goods which were the subject of the contract of carriage between SAA and Rustenberg, another South African concern. In the absence of any contrary" }, { "docid": "18813746", "title": "", "text": "International Longshoreman’s Association (ILA), the collective bargaining representative for the Port of New York’s longshoremen. Pursuant to the labor contract, steamship carriers pay to the Shipping Association assessments for its employees’ benefits based on total tonnage loaded and unloaded from the carriers’ vessels by longshoremen in the Port of New York. The Shipping Association remits a portion of the assessments it receives from its members to the NYSA-ILA Pension Trust Fund (Fund), which is managed by a board of trustees appointed by the ILA and the NYSA. See generally Korea Shipping Corp. v. NYSA-ILA Pension Trust Fund, 880 F.2d 1531, 1533-35 (2d Cir.1989) (explaining the foregoing in greater detail). Bank Line and Safmarine regularly paid assessments through the Shipping Association to the Fund into the year 1988. Meanwhile, political pressure had been mounting during the mid-1980s for American business to cease commercial trading with the then apartheid-sponsoring government of South Africa, resulting in a precipitous drop in American trade with that nation. The economic fallout from the trade embargo had adverse economic consequences on Bank Line and Safmarine, leading to their signing of a “space charter and sailing” agreement in 1985 for the routes both businesses serviced between the U.S. and South Africa. Under that agreement the companies jointly scheduled their ships in a convenient manner, each carrying cargo for the other, which effectively reduced the number of vessels each had to operate to South Africa while at the same time offering cargo shippers more frequent sailings. Prompted by the success of their contractual relationship, Safmarine and Bank Line entered into a joint venture on November 30, 1987 establishing Safbank Line Limited (Saf-bank), a separate British company, to operate ships between South Africa and the United States. Under the agreement Bank Line and Safmarine withdrew from the shipping trade, which was now to be served by Saf-bank. Bank Line and Safmarine continued their separate shipping operations on routes other than those between the U.S. and South Africa. Safbank is 45 percent owned by Safmarine and 55 percent owned by Comeric Limited, a corporation 63 percent of whose stock is owned" }, { "docid": "15424704", "title": "", "text": "the President to “immediately notify” (emphasis added) the South African government of his intention to suspend such service, and subsection 306(a)(2) called for him to direct the Secretary ten days later to revoke the right of any carrier designated by the government of South Africa to provide air service pursuant to the Agreement. Given the evident urgency of those instructions, it is hard to believe that Congress intended the Secretary to wait another 365 days before actually suspending petitioner’s permit. Furthermore, both the circumstances of the enactment of section 306(a) and the accompanying debate make it impossible to reach any conclusion other than that Congress intended the expeditious suspension of SAA’s permit. In its original form, section 306 went no further than to direct termination of the Agreement on its own terms. Therefore, the actual suspension of SAA’s landing rights would not have occurred for another year. It was for the express purpose of accelerating that suspension that Senators Sarbanes and Kassebaum introduced section 306(a) as an amendment to the version of the Anti-Apartheid Act submitted by the Senate Foreign Relations Committee. In presenting the amendment, Senator Sarbanes stated: The amendment that the Senator from Kansas and I have offered would bring a suspension of air service 10 days after the enactment of the legislation. It would have the President notify South African authorities of his intention to suspend and 10 days later, the suspension would take effect. 132 Cong.Rec. S11, 712 (daily ed. Aug. 14, 1986). Although senators spoke both in favor of and against the amendment, none questioned that its effect would be immediate. Committee Chairman Lugar, for example, strongly opposed the amendment on the explicit ground that in his judgment the revocation would violate the Agreement. At the same time, he reiterated his approval of the Act’s original provision, in what is now section 306(b), that would have limited the sanction to giving South Africa the one year’s notice of termination required by the Agreement. 132 Cong.Rec. Sll,714. Thus his subsequent vote to table the amendment could only have confirmed his understanding of the immediacy of its" }, { "docid": "15424713", "title": "", "text": "Mancari, 417 U.S. 535, 550-51, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974) (citations omitted). Petitioner’s argument that the Secretary was bound by section 1102 of the Aviation Act to construe section 306(a)(2) consistently with the permit revocation provisions of the Agreement is therefore without merit. 4. Remaining Argument We have also considered, but found without merit, petitioner’s argument that, by its own terms, section 306 of the Anti-Apartheid Act does not apply to SAA. Section 306(a)(2) directs the revocation of “the right of any air carrier designated by the Government of South Africa under the Agreement to provide service pursuant to the Agreement.” Section 306(d), as amended by the Act of November 7, 1986, Pub.L. No. 99-631, 100 Stat. 3516, provides that the term “air carrier” in section 306 is to be given the meaning of that term in section 101 of the Aviation Act, 49 U.S.C. § 1301 (1982). Section 101, in turn, defines “air carrier” as “any citizen of the United States who undertakes, whether directly or indirectly or by a lease or any other arrangement, to engage in air transportation. ...” 49 U.S.C. app. § 1301(3) (1982). Accordingly, petitioner claims that SAA is not subject to the terms of section 306(a)(2) because it is not a “citizen of the United States”; and therefore, that it should not have been the object of the Final Order implementing that section. We reject this ingenious interpretation of the Act because in context it is clear that the words “air carrier” apply explicitly to a South African carrier. As “air carrier” is immediately followed by “designated by the Government of South Africa under the Agreement,” it is clear that we are not dealing with U.S. citizens. The Agreement requires that designated air carriers be owned or controlled by nationals of the designating country or else the permit issued by the other country may be revoked: Each contracting party reserves the right to withhold or revoke a certificate or permit to an air carrier designated by the other contracting party in the event that it is not satisfied that substantial ownership" }, { "docid": "15424703", "title": "", "text": "distinct claims: (1) immediate revocation is not required by the Act; (2) as immediate revocation entails a violation of the Agreement, such a revocation is impermissible under the applicable principle of statutory construction; and (3) the Secretary is bound by section 1102 of the Aviation Act to construe section 306(a)(2) consistently with the permit revocation provisions of the Agreement. 1. Timing of Revocation Petitioner argues that although section 306(a)(2) required the President ten days after the Act’s enactment to direct the Secretary to revoke SAA’s permit, the section is silent as to when such revocation is to take place. Therefore, the Secretary could have timed the actual suspension of the permit to coincide with the termination of the Agreement. While this is true in the literal sense, it is impossible to reconcile such a construction with other provisions of section 306 that compel the conclusion that Congress intended to terminate air service to the United States by South African carriers without regard to the one-year notice required for termination of the Agreement. Subsection 306(a)(1) required the President to “immediately notify” (emphasis added) the South African government of his intention to suspend such service, and subsection 306(a)(2) called for him to direct the Secretary ten days later to revoke the right of any carrier designated by the government of South Africa to provide air service pursuant to the Agreement. Given the evident urgency of those instructions, it is hard to believe that Congress intended the Secretary to wait another 365 days before actually suspending petitioner’s permit. Furthermore, both the circumstances of the enactment of section 306(a) and the accompanying debate make it impossible to reach any conclusion other than that Congress intended the expeditious suspension of SAA’s permit. In its original form, section 306 went no further than to direct termination of the Agreement on its own terms. Therefore, the actual suspension of SAA’s landing rights would not have occurred for another year. It was for the express purpose of accelerating that suspension that Senators Sarbanes and Kassebaum introduced section 306(a) as an amendment to the version of the Anti-Apartheid Act" }, { "docid": "15424693", "title": "", "text": "We reject these arguments because we conclude that Congress intended the immediate suspension of the rights enjoyed by SAA pursuant to the Agreement. As Congress has authority to “regulate Commerce with foreign Nations” and to “make all Laws which shall be necessary” for the exercise of that authority, section 306(a) of the Act overrides any provision of the Agreement or of the Federal Aviation Act with which it may be inconsistent. I. Factual Background In October 1986, Congress enacted the Comprehensive Anti-Apartheid Act of 1986, Pub.L. No. 99-440, 100 Stat. 1086 (“Anti-Apartheid Act” or “Act”). Section 306(b)(1) of the Act directs the Secretary of State to “terminate the Agreement Between the Government of the United States of America and the Government of the Union of South Africa Relating to Air Services Between Their Respective Territories, signed May 23, 1947, in accordance with the provisions of that agreement.” Article XI of the Agreement provides for its termination upon one year’s notice given by either party. Agreement, 61 Stat. at 3061. The Agreement also specifies limited conditions under which permits issued pursuant to the Agreement may be revoked. Agreement, art. VI, 61 Stat. at 3059-60. Section 306(a)(2) of the Act, which was offered in the Senate as a floor amendment, provides: Ten days after the enactment of this Act, the President shall direct the Secretary of Transportation to revoke the right of any air carrier designated by the Government of South Africa under the Agreement to provide service pursuant to the Agreement. On October 10, 1986, the Secretary of State delivered the one-year termination notice to the South African Ambassador, and seventeen days later the President issued Executive Order 12,571 directing the Secretary of Transportation (“Secretary”) to take the steps specified in section 306(a)(2) of the Act. Exec. Order No. 12,571, 51 Fed.Reg. 39,505 (1986). The Secretary thereupon issued Department of Transportation (“DOT”) Final Order 86-11-29 (“Final Order”) in which she initiated the steps required to effect an immediate revocation of South African Airways’ permit. As required by section 801(a) of the Federal Aviation Act of 1958 (“Aviation Act”), 49 U.S.C. app." }, { "docid": "15424715", "title": "", "text": "and effective control of such carrier are vested in nationals of the other contracting party____ Agreement, art. VI, 61 Stat. at 3059. Accordingly, we read “air carrier designated by the Government of South Africa under the Agreement” as clearly distinguishable from “air carrier” standing alone. III. Conclusion The Secretary correctly interpreted section 306(a)(2) of the Anti-Apartheid Act. Section 306(a)(2) unambiguously calls for expedited revocation of any permit issued to a South African air carrier pursuant to the Agreement whether or not the revocation may later be found to constitute a breach of the Agreement. The petition to set aside DOT Final Order 86-11-29 is therefore Denied. . Agreement between the Government of the United States of America and the Government of the Union of South Africa Relating to Air Services Between Their Respective Territories, May 23, 1947, 61 Stat. 3057, T.I.A.S. No. 1639, as amended by Agreement between the United States of America and the Union of South Africa, Nov. 2, 1953, 4 U.S.T. 2205, T.I.A.S. No. 2870, and Air Transport Services Agreement, June 28, 1968, United States-South Africa, 19 U.S.T. 5193, T.I.A.S. No. 6512 (substituting \"Republic\" for “Union” throughout Agreement, as amended). . Petitioner relies heavily on the Court’s reasoning in United States v. Lee Yen Tai, 185 U.S. 213, 221, 22 S.Ct. 629, 632, 46 L.Ed. 878 (1902) (\"the purpose by statute to abrogate a treaty or any designated part of a treaty ... must not be lightiy assumed, but must appear clearly and distinctly from the words used in the statute”), and Weinberger v. Rossi, 456 U.S. 25, 35, 102 S.Ct. 1510, 1517, 71 L.Ed.2d 715 (1982) (\"affirmative congressional expression [is] necessary to evidence an intent to abrogate provisions in 13 international agreements”). Both of these cases can be distinguished; in neither case did the Court face an unambiguous congressional mandate to do something which in turn might abrogate U.S. international obligations. As we mentioned earlier, we do not decide whether the Anti-Apartheid Act does in fact abrogate terms of the Agreement. Furthermore, even if the Act did effect an abrogation, the Court’s reasoning in Lee Yen" }, { "docid": "15424712", "title": "", "text": "8. As this court has noted, “Under our constitutional scheme, Congress can denounce treaties if it sees fit to do so, and there is nothing the other branches of government can do about it.” Diggs v. Shultz, 470 F.2d 461, 466 (D.C.Cir.1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1897, 36 L.Ed.2d 390 (1973). 3. The Aviation Act's General Prohibition As we conclude that section 306(a)(2) supersedes whatever provisions of the Agreement may be in conflict with that section, so must it supersede, to the degree required, the Secretary’s general duty under section 1102 of the Aviation Act, 49 U.S.C. § 1502(a) (1982), to exercise her powers “consistently with any obligations assumed by the United States in any treaty, convention, or agreement that may be in force between the United States and any foreign country.” Section 306(a)(2) of the Anti-Apartheid Act is a very specific congressional directive. “Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” Morton v. Mancari, 417 U.S. 535, 550-51, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974) (citations omitted). Petitioner’s argument that the Secretary was bound by section 1102 of the Aviation Act to construe section 306(a)(2) consistently with the permit revocation provisions of the Agreement is therefore without merit. 4. Remaining Argument We have also considered, but found without merit, petitioner’s argument that, by its own terms, section 306 of the Anti-Apartheid Act does not apply to SAA. Section 306(a)(2) directs the revocation of “the right of any air carrier designated by the Government of South Africa under the Agreement to provide service pursuant to the Agreement.” Section 306(d), as amended by the Act of November 7, 1986, Pub.L. No. 99-631, 100 Stat. 3516, provides that the term “air carrier” in section 306 is to be given the meaning of that term in section 101 of the Aviation Act, 49 U.S.C. § 1301 (1982). Section 101, in turn, defines “air carrier” as “any citizen of the United States who undertakes, whether directly or indirectly or by a lease" }, { "docid": "19908185", "title": "", "text": "of the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, 1077, amended the definition of “employee” for purposes of Title VII and the ADA to provide that “with respect to employment in a foreign country, [the] term includes an individual who is a citizen of the United States.” 42 U.S.C. §§ 2000e(f), 12111(4); see also Torrico v. Int’l Bus. Machs. Corp., 213 F.Supp.2d 390, 399 (S.D.N.Y.2002) (“The language of the 1991 amendments to the ADA and Title VII ... applies] those statutes extraterritorially to U.S. citizens “ ‘with respect to employment in a foreign country ----”) (quoting 42 U.S.C. §§ 2000e(f)), 12111(4))). Similarly, in 1984, Congress amended the definition of employee in Section 11(f) of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”), to “ ‘mak[e] provisions of the [ADEA] apply to citizens of the United States employed in foreign countries by U.S. corporations or their subsidiaries,’ ” Aramco, 499 U.S. at 259, 111 S.Ct. 1227 (alteration in original) (quoting S.Rep. No. 98-467, at 2 (1984)). See Pub L. No. 98-459, § 802, 98 Stat. 1767, 1792 (1984) (amending the definition of the term “employee” in the ADEA to include “any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country” (codified at 29 U.S.C. § 630(f))). C. Alleged Discrimination in South Africa We consider first whether the District Court properly dismissed claims involving alleged discrimination that occurred while Ofori was living and working in South Africa. See, e.g., Compl. ¶ 16 (alleging that, after his transfer to South Africa, Ofori was forced to work in a less desirable office than other South African employees); id. ¶ 18 {“From the time that he began working in South Africa, Ofori [was] ... singled ... out for particular scrutiny and ridicule.”) (emphasis added); id. ¶ 23 (Ofori received his “only poor performance review” while working in South Africa); id. ¶¶ 25-36 (claiming that Ofori was improperly suspended after having been wrongly accused of stealing from the businessman whose office he shared). Ofori" }, { "docid": "23505391", "title": "", "text": "N.Y.S.2d at 926, 612 N.E.2d at 284. This case, essentially an action for indemnification, arises from a contract for carriage of goods between a shipper and an air carrier. The Warsaw Convention, an international treaty governing the liability of air carriers, provides the cause of action. That treaty deprives an air carrier of its limited liability protection for damage caused by the wilful misconduct of its employees. However, that treaty refers to the law of the forum jurisdiction for a determination of whether theft by an employee acting within the scope of employment constitutes wilful misconduct by the air carrier. We need not decide whether this context requires application of contract choice of law principles or tort choice of law principles, or, assuming the latter, whether the applicable law is one of conduct regulation or loss allocation. Under any analysis, the Republic of South Africa clearly is the center of gravity of this dispute, Allstate Ins., 81 N.Y.2d at 227, 597 N.Y.S.2d at 908, 613 N.E.2d at 940, and has the greatest interest in having its law applied to this controversy, Istim, Inc., 78 N.Y.2d at 348, 575 N.Y.S.2d at 798, 581 N.E.2d at 1044. Brink’s, the plaintiff and the intended consignee under the contract of carriage, is a British company with a satellite office in New Canaan, Connecticut. SAA is a South African corporation with a local New York office. SAA, as noted, is also an instrumentality of the South African government. South Africa was the place of contracting and the pri mary place of performance. Thus, while the Republic of South Africa is closely associated to the contract of carriage, New York is not associated with that contract at all. With respect to Brink’s’ claim of theft, Brink’s’ theory is that SAA employees stole the goods in South Africa. With respect to Brink’s’ claim that the wilful misconduct of SAA’s employees, under the totality of the circumstances, caused the loss to occur, all of the actions which form the basis of this claim likely occurred in South Africa. In other words, if any misconduct occurred at all, it" }, { "docid": "21845623", "title": "", "text": "the Executive Branch’s view of the case’s impact on foreign policy”). In a world where many countries may fall considerably short of ideal economic, political, and social conditions, this Court must be extremely cautious in permitting suits here based upon a corporation’s doing business in countries with less than stellar human rights records, especially since the consequences of such an approach could have significant, if not disastrous, effects on international commerce. Moreover, to infer such causes of action under the ATCA would expand precipitously the jurisdiction of the federal courts and would not be consistent with the “extraordinary care and restraint” that this Court must exercise in recognizing new violations of customary international law. See Flores, 343 F.3d at 154; cf. Thompson v. Oklahoma, 487 U.S. 815, 854-55, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (O’Con-nor, J., concurring) (discussing the danger of hastily deciding that certain practices have become customary). Finally, far from there being a congressional mandate to find a cause of action here, history indicates that Congress, consistent with most other world powers, supported and encouraged business investment in apartheid South Africa. The Comprehensive Anti-Apartheid Act of 1986, 100 Stat. 1086, placed a minimal amount of restrictions on business activities with South Africa. This policy of constructive engagement was similar to the policies of many of the world powers at the time. See Declaration of Lord Renwick, dated July 9, 2003 at ¶¶ 9-13 (explaining that the United Kingdom believed that investment in South Africa was the best way to work towards change); Declaration of Rudolf Dolzer, dated July 9, 2003 at ¶¶ 3, 25, 30 (same with regards to Germany); -Declaration of Mathias-Charles Krafft, dated July 4, 2003 at ¶¶ 5, 9 (Switzerland). As the government makes clear in this case, the United States still relies on the tool of economic investment as a means to achieve greater respect for human rights and a reduction in poverty in developing countries. See Statement of Interest of the United States, dated October 30, 2003. Therefore, under the framework set forth by the Court in Sosa, this Court finds that" }, { "docid": "21845624", "title": "", "text": "supported and encouraged business investment in apartheid South Africa. The Comprehensive Anti-Apartheid Act of 1986, 100 Stat. 1086, placed a minimal amount of restrictions on business activities with South Africa. This policy of constructive engagement was similar to the policies of many of the world powers at the time. See Declaration of Lord Renwick, dated July 9, 2003 at ¶¶ 9-13 (explaining that the United Kingdom believed that investment in South Africa was the best way to work towards change); Declaration of Rudolf Dolzer, dated July 9, 2003 at ¶¶ 3, 25, 30 (same with regards to Germany); -Declaration of Mathias-Charles Krafft, dated July 4, 2003 at ¶¶ 5, 9 (Switzerland). As the government makes clear in this case, the United States still relies on the tool of economic investment as a means to achieve greater respect for human rights and a reduction in poverty in developing countries. See Statement of Interest of the United States, dated October 30, 2003. Therefore, under the framework set forth by the Court in Sosa, this Court finds that doing business in apartheid South Africa is not a violation of international law that would support jurisdiction in federal court under the ATCA. Therefore, this Court finds that there is no subject matter jurisdiction under the ATCA, and thus all claims thereunder, including those for human rights violations, crimes against humanity, unfair labor practices, and all other premised under international law, must be dismissed. Because this Court finds no cause of action under international law, plaintiffs have failed to state claims upon which to ground jurisdiction under 28 U.S.C. §§ 1331 and 1332. B. Digivamaje Plaintiffs’ Claims Under the TVPA and RICO The Torture Victim Protection Act of 1991 (“TVPA”), 28 U.S.C. § 1350 note, establishes a civil action against an “individual who, under actual or apparent authority, or color of law, of any foreign nation” subjects another to “torture” or “extrajudicial killing.” 28 U.S.C. § 1350 note. In order to hear an action under this provision, the Court must be satisfied that plaintiff has exhausted all remedies in the place where the conduct occurred." }, { "docid": "15424692", "title": "", "text": "BUCKLEY, Circuit Judge: Petitioner South African Airways (“SAA”) asks this court to set aside an order issued on October 31, 1986 by the Secretary of Transportation revoking its permit to provide air service between the United States and South Africa. The order was issued pursuant to section 306(a) of the Comprehensive Anti-Apartheid Act of 1986, which directed the revocation of the right of any designee of the South African government to provide air service pursuant to the terms of an executive agreement between the United States and South Africa dated May 23, 1947 (“Agreement”). Petitioner challenges the Secretary of Transportation’s order on the principal grounds that as the immediate revocation of its permit was neither allowed by the Agreement (which remains in effect at least until October 1987) nor required by the Anti-Apartheid Act, the order violates both a provision of the Federal Aviation Act directing the Secretary of Transportation to observe international agreements and Supreme Court precedent requiring that statutes and executive agreements be interpreted, where possible, so as to give effect to both. We reject these arguments because we conclude that Congress intended the immediate suspension of the rights enjoyed by SAA pursuant to the Agreement. As Congress has authority to “regulate Commerce with foreign Nations” and to “make all Laws which shall be necessary” for the exercise of that authority, section 306(a) of the Act overrides any provision of the Agreement or of the Federal Aviation Act with which it may be inconsistent. I. Factual Background In October 1986, Congress enacted the Comprehensive Anti-Apartheid Act of 1986, Pub.L. No. 99-440, 100 Stat. 1086 (“Anti-Apartheid Act” or “Act”). Section 306(b)(1) of the Act directs the Secretary of State to “terminate the Agreement Between the Government of the United States of America and the Government of the Union of South Africa Relating to Air Services Between Their Respective Territories, signed May 23, 1947, in accordance with the provisions of that agreement.” Article XI of the Agreement provides for its termination upon one year’s notice given by either party. Agreement, 61 Stat. at 3061. The Agreement also specifies limited conditions" } ]

[ { "docid": "17976154", "title": "", "text": "It should also be borne in mind that, since Section 1826(a) • specifically provides for summary contempt procedure, certain concessions to ideal process necessarily must be made. “The same considerations which justify the holding of civil contempt proceedings, absent the safeguards of indictment and jury ., warrant reasonable expedition of such proceedings. . . . ” United States v. Weinberg, 439 F.2d 743, 746 (9 Cir. 1971). See also Shillitani v. United States, 384 U.S. 364, 370-71 (1966). In the light of Handler’s actual knowledge of the nature of the contempt proceedings against him, we hold that he was not denied due process by the failure to provide formal notice. III. Handler’s next claim goes to the conduct of the contempt hearing itself. In particular, he argues that, not only did the court fail to require any proof of the legitimacy of the grand jury investigation or of the materiality to that investigation of the questions asked of Handler, but that the court in fact refused to entertain the government’s offer of such proof. His contention that such conduct of the contempt hearing constituted a denial of due process is based largely on his reading of United States v. Dinsio, 468 F.2d 1392 (9 Cir. 1972), and In re Verieker, 446 F.2d 244 (2 Cir. 1971). We find both eases readily distinguishable. We hold that Handler was not denied a fair hearing. Section 1826(a) provides for confinement of a recalcitrant witness where the refusal to testify is “without just cause shown.” (emphasis added). That language seems rather clearly to place on the witness the burden of coming forward with “just cause”. In Gelbard v. United States, 408 U.S. 41 (1972), for example, the Court held that the government is required to respond to an allegation by a recalcitrant grand jury witness that the questions asked were based on information obtained by an illegal wiretap. Cf. Bacon v. United States, 466 F. 2d 1196 (9 Cir. 1972). Similarly in Dinsio, the witness' refusal to submit finger and palm print exemplars to a grand jury was based on specific constitutional objections to" } ]

[ { "docid": "8148510", "title": "", "text": "was asked to provide related to information made available to the government through an illegal wiretap. Third, appellant claims that he should have not been held in contempt because the prosecutors abused the grand jury process. We address these arguments in the order presented. Appellant’s first argument, that the government did not present sufficient evidence to prove that appellant never actually appeared in the lineup, strains credulity. The government submitted an affidavit to support its motion for a show cause order, which stated that appellant had refused to appear in the lineup when requested. At the hearing appellant had the burden to show just cause for his failure to obey the court’s order. In re Bianchi, 542 F.2d 98, 100-01 (1st Cir. 1976). Appellant then had ample opportunity to avoid contempt by showing that he has subsequently appeared in the lineup. Not only did he fail to allege this fact, but his counsel conceded that he had not obeyed the court’s order when he stated in open court that his client “has a right to explain why he did not comply with the court order.” Appellant does not impress us with his attempt to engraft onto a summary procedure “meaningless formalities that would only serve to delay the proceedings.” Id. at 101. The next contention is. that under Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), appellant had a right to justify his refusal to appear in the lineup by proving that the government’s request was pursuant to information procured through illegal interception of wire communication. See 18 U.S.C. § 3504. The district court rejected this contention because it ruled that the question of illegal electronic surveillance could not be raised when a grand jury witness is ordered to provide only nontestimonial evidence such as exemplars or an appearance in a lineup. We need not decide this issue here, however, because, assuming that Gelbard applies to grand jury orders to appear in a lineup, we find that the government has met its burden to respond to the witness’ allegation by denying in an affidavit" }, { "docid": "8148509", "title": "", "text": "was notified that the grand jury wished him to return at the end of April, at which time he would be directed to appear in a lineup. Appellant appeared at the appointed time but refused to stand in the lineup. The district court immediately ordered appellant to comply with the grand jury directive. Although appellant had numerous motions before the court, he did not answer this order and a warrant for arrest issued the following day. Appellant surrendered himself and was released on bail. A hearing on the government’s motion for contempt was heard on May 8, after which the court determined that appellant had not demonstrated just cause for his refusal to appear in the lineup. Appellant was then incarcerated pursuant to the court’s order. Appellant raises three principal issues on appeal. First, he argues that the government did not offer sufficient evidence to the court to prove that he did not actually appear in the lineup. Second, he contends that the court erred in not allowing him to prove that the evidence he was asked to provide related to information made available to the government through an illegal wiretap. Third, appellant claims that he should have not been held in contempt because the prosecutors abused the grand jury process. We address these arguments in the order presented. Appellant’s first argument, that the government did not present sufficient evidence to prove that appellant never actually appeared in the lineup, strains credulity. The government submitted an affidavit to support its motion for a show cause order, which stated that appellant had refused to appear in the lineup when requested. At the hearing appellant had the burden to show just cause for his failure to obey the court’s order. In re Bianchi, 542 F.2d 98, 100-01 (1st Cir. 1976). Appellant then had ample opportunity to avoid contempt by showing that he has subsequently appeared in the lineup. Not only did he fail to allege this fact, but his counsel conceded that he had not obeyed the court’s order when he stated in open court that his client “has a right to" }, { "docid": "7739724", "title": "", "text": "the legislative history indicate that a debtor may be denied a discharge as a result of his failure to testify only when he continues to refuse to testify after a grant of immunity. It does not indicate that denial of the debtor’s discharge is the exclusive penalty for failing to testify despite immunity. Furthermore, if the denial of discharge were the only penalty for refusing to testify, then a witness other than the debtor granted im munity under section 344 would have no incentive to testify. Obviously, this is not what Congress intended by section 727(a)(6)(B). Since the civil contempt order was proper, incarceration was an appropriate remedy. 28 U.S.C. § 1826(a) (1976) provides in pertinent part that: Whenever a witness in any proceeding before or ancillary to any court ... of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information ... the court, upon such refusal ... may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information, (emphasis added). The use of the word “any” indicates that Congress intended this section to apply to bankruptcy proceedings. Even without the statute, a court may coerce a recalcitrant witness to testify through incarceration. Uphaus v. Wyman, 360 U.S. 72, 81, 79 S.Ct. 1040, 1046, 3 L.Ed.2d 1090 (1959); In re Grand Jury Investigation (Braun), 600 F.2d 420, 422 (3d Cir.1979) (“Embedded in Anglo-American law is the inherent power of the judiciary to coerce obedience to its orders by summarily holding a recalcitrant person— such as an immunized witness who refuses to testify at a grand jury proceeding or at a trial — in civil contempt, and then imprisoning him until he complies.”). Appellant concludes his appeal by claiming that 11 U.S.C. § 344 is unconstitutional when used to compel a voluntary debtor to testify against himself, upon pain of contempt and incarceration, in a bankruptcy proceeding in which the government has no stake in the outcome. He maintains that he has a right" }, { "docid": "7136124", "title": "", "text": "601 (S.D.Fla.1996). This burden of proof is more exacting than the “preponderance of the evidence” standard but, unlike criminal contempt, does not require proof beyond a reasonable doubt. United States v. Rizzo, 539 F.2d 458, 465 (5th Cir.1976). Once a prima facie showing of a violation has been made, the burden of production shifts to the alleged eontemnor, who may defend his failure on the grounds that he was unable to comply. CFTC, 950 F.2d at 1528. If the alleged eontemnor makes a sufficient showing of impossibility, the burden of proving ability to comply then shifts to the party seeking to show contempt. See id. In this case, it is undisputed that the Chapter 7 Trustee met its initial burden of proving by clear and convincing evidence that the appellant did not comply with the terms of the bankruptcy court’s August 26, 1999 Turn Over Order. At the September 2, 1999 hearing, the appellant stipulated that he had not turned over assets or caused them to be turned over and that he had not provided an accounting, and Goldberg testified that he had not received the res or the accounting. 9/2/99 Tr. at 9, 22. At the September 16, 1999 status conference, Goldberg informed the court that he had not received any assets from the Trust. 9/16/99 Tr. at 22. Furthermore, at the October 5, 1999 status conference, Goldberg testified that he had still not received any of the Trust’s assets from the appellant or from anyone else. 10/5/99 Tr. at 101. The burden of production thus shifted to the appellant to prove that he was unable to comply. 3. Impossibility Once a prima facie showing of a violation has been made, the burden of productions shifts to the alleged contemnor, who may defend his failure on the grounds that he was unable to comply. CFTC, 950 F.2d at 1529; United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 1552, 75 L.Ed.2d 521 (1983) (“Where compliance is impossible, neither the moving party nor the court has any reason to proceed with the civil contempt action. It is settled," }, { "docid": "21062841", "title": "", "text": "U. S. Attorney. Responding to the petition, appellant filed his “Position”, reaffirming that “his reluctance to testify is and has been based upon a genuine and well-founded fear . . . .” On September 20, 1979, a contempt hearing was held. Appellant reiterated his basis for refusing to testify and also made clear his lack of interest in the government’s witness protection program. Appellant’s counsel conceded that Piemonte, supra, was “strikingly similar” to this case and appealed rather to “the human consideration here”. The court read 28 U.S.C. § 1826(a), detailing the procedure to be followed in a case of civil contempt, stated that the law was clear that even a substantial basis for fear was not just cause for refusal to testify, and asked whether appellant, “with that in mind”, still refused to answer. On receiving an affirmative answer, the court found appellant in contempt. Counsel for appellant, notwithstanding his awareness of Piemonte, supra, filed a brief with this court repeating his plea that the court indulge his client’s fears for personal and family safety. His oral argument bore no relationship to the brief, but was directed to the fact that the only order to testify was hinged to a situation where appellant based his refusal on his privilege against self-incrimination — a condition not present here. Initially, we were impressed by this argument, and considered whether we should not remand to the district court so that a more formal order to testify could be entered. Because of the seriousness of civil contempt judgments we wished to assure ourselves that full due process had been accorded, despite our disinclination to consider issues raised for the first time on appeal. Our further deliberations, however, convince us that this appeal cannot be said to have any other than superficial merit. Although in In re Bianchi, 542 F.2d 98 (1st Cir. 1976), we were dealing with the notice given an appellant at a show cause hearing of the specific questions he had refused to answer, rather than notice of an order to testify, what we said applies here: “While a witness must" }, { "docid": "15099997", "title": "", "text": "what it describes as the vague and eleventh-hour nature of appellant’s claim, the government maintains its initial disclaimer was sufficient and our call for supplementary affidavits unnecessary. Yet we need not resolve this issue, as the government’s subsequent affidavits have “put to rest any lingering doubts we had about the adequacy of [the] response.” In re Tse, 748 F.2d at 728 (footnote omitted). Our directive that the government supplement its response at the appellate level, while admittedly unusual, is not without precedent: we did the same in both Tse, id. at 728-29, and United States v. Doe, 451 F.2d 466, 467 (1st Cir.1971). In Doe, where the disclaimer was deficient prior to the case reaching this court, we vacated the contempt order with instructions that the district court could again hold the witness in contempt for refusing to testify on this ground. In Tse, by contrast, we affirmed the contempt order, citing the “eleventh hour raising of the wiretap issue and the reasonableness and arguable adequacy of the government’s attempts to meet its burden.” 748 F.2d at 728. We affirm the order in the instant case as well, not only because of the belated nature of the claim, as in Tse, but because the government, we think, was not fully responsible for the arguable deficiencies in its initial response. Sergeant McGreal was present at the contempt hearing, and the record reveals that the government was prepared to put him on the stand. Instead, following Agent Horan’s testimony, the district court deemed the government’s response sufficient and terminated the hearing. Under such circumstances, we cannot fully fault the government for not insisting on the presentation of further evidence. The order of contempt is affirmed. . A court may hold in civil contempt any grand jury witness who \"refuses to testify without just cause shown to comply with an order of the court to testify_” 28 U.S.C. § 1826(a). A showing that the questioning of such a witness was based on illegal electronic surveillance constitutes \"just cause\" for refusing to testify and precludes a finding of contempt. Gelbard v. United States, 408" }, { "docid": "3463495", "title": "", "text": "of identity and testimony of one grand jury witness to another grand jury witness is improper), cert. denied, 436 U.S. 917, 98 S.Ct. 2261, 2262, 56 L.Ed.2d 757 (1978). Nevertheless, the usual penalty for secrecy violations has been the imposition of contempt sanctions against the government. Thus, in In re Grand Jury Investigation (Lance), 610 F.2d at 219, the government actually released witnesses’ names to the media. Even so, the court declared that a contempt citation would usually be adequate and that a person would bear a heavy burden if he sought to quash the subpoena. See United States v. Eisenberg, 711 F.2d 959 (11th Cir.1983); In re Grand Jury Subpoenas, April, 1978, 581 F.2d 1103 (4th Cir.1978), cert. denied, 440 U.S. 971, 99 S.Ct. 1533, 59 L.Ed.2d 787 (1979). It is, of course, true that if the witness can show “just cause” for not testifying, the district court should not order his incarceration. 28 U.S.C. § 1826. It is also true that the Tenth Circuit has held that if an unauthorized person is present during the grand jury testimony of a witness, that witness has just cause to refuse to testify. In re Grand Jury Proceedings (Mallory), 797 F.2d 906, 907 (10th Cir.1986). We need not pass on that issue because the holding is a far cry from the rule that appellant seeks to have us establish today. It must be acknowledged that the facts of Mallory suggest that it stands for the proposition that news coverage of a person’s appearance before the grand jury would permit a district court to find “just cause,” but, even if that were so, it is not this case. More importantly, appellant’s claim (perhaps, also, Mallory) is contrary to the principles enunciated in Dupuy v. United States, 518 F.2d 1295 (9th Cir.1975) (per curiam). In that case, the appellant declared that “his life would be endangered by his fellow prisoners if he testified....” Id. He claimed that was just cause for his refusal. We responded: No federal court in a reported decision has held that fear of retaliation is sufficient reason to refuse" }, { "docid": "3588131", "title": "", "text": "a subpoena duces tecum, we believe the teaching of Ryan is that the witness has “just cause” when compliance would be “unduly burdensome or otherwise unlawful.” Ryan, 402 U.S. at 532, 91 S.Ct. at 1582; see also In re Brummitt, 608 F.2d 640, 643 (5th Cir.1979). In addition, it seems to us that the claim that a subpoena was applied for and issued under the signature of unauthorized persons would constitute a cognizable claim of undue burden or unlawfulness under Ryan. We are therefore convinced that appellant’s argument satisfied the “just cause” requirement set out in section 1826 for defenses that may be interposed in contempt proceedings and on appeal from orders of contempt. Third, issues analogous to appellant’s have been litigated, and thus treated as ripe, in the contempt setting. The leading example is In re Subpoena of Persico, 522 F.2d 41 (2d Cir.1975). There, a witness subpoenaed to appear before a grand jury refused to answer certain questions concerning the identity of his employees. He was (twice) held in contempt and sentenced (the second time) to incarceration for the remainder of the grand jury’s term. Pérsico challenged the contempt adjudication by attacking under 28 U.S.C. § 515(a) the validity of the commission held by the “Special Attorney” who directed the grand jury’s investigation and upon whose application the subpoenas issued. In Persico’s view, the “Special Attorney’s” commission, which had been executed by an Assistant Attorney General, did not satisfy the statutory requirement that commissions contain a “specific direction” about the duties of a “Special Attorney.” To the contrary, Pérsico argued, the commission held by the “Special Attorney” constituted a “roving authority.” The Second Circuit, in a comprehensive opinion by District Judge Weinstein, examined and adjudicated the defense, rejecting it on the merits. The court did not require, as Independent Counsel would here, that Pérsico await the completion of the grand jury proceedings and be indicted before mounting any challenge to the authority under which the subpoenas issued. Other decisions are to the same effect. For example, the Eighth Circuit reached the merits of a contemnor’s defense that a" }, { "docid": "23685004", "title": "", "text": "court’s order commanding or forbidding an act should not be so inconclusive as to foster experimentation with disobedience. See also United States v. Rylander, 460 U.S. 752, 756-57, 103 S.Ct. 1548, 1552, 75 L.Ed.2d 521 (1983) (defendant in civil contempt proceeding could not attack enforcement order on ground that he never had possession or control of the documents he was required to produce when that issue had already been determined by the enforcement order). Therefore, we hold that the district court did not err in finding that Weiss was not permitted to reargue the $2.8 million figure. That controversy has been litigated and resolved. B. Civil Contempt Weiss next argues that the district court erred by holding him in civil contempt and incarcerating him when he has no money to comply with the court’s order. A party seeking civil contempt bears the initial burden of proving by clear and convincing evidence that the alleged contemnor has violated an outstanding court order. See Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1301 (11th Cir.1991); Combs v. Ryan’s Coal Co., 785 F.2d 970, 984 (11th Cir.), cert. denied, 479 U.S. 853, 107 S.Ct. 187, 93 L.Ed.2d 120 (1986). Once a prima facie showing of a violation has been made, the burden of production shifts to the alleged contemnor, who may defend his failure on the grounds that he was unable to comply. Rylander, 460 U.S. at 757, 103 S.Ct. at 1552 (“Where compliance is impossible, neither the moving party nor the court has any reason to proceed with the civil contempt action. It is settled, however, that in raising this defense, the defendant has a burden of production.”); United States v. Roberts, 858 F.2d 698, 701 (11th Cir.1988); United States v. Hayes, 722 F.2d 723, 725 (11th Cir.1984). The burden shifts back to the initiating party only upon a sufficient showing by the alleged contemnor. The party seeking to show contempt, then, has the burden of proving ability to comply. Combs, 785 F.2d at 984 (“The party seeking the contempt citation retains the ultimate burden of proof ...”); In re Battaglia, 653" }, { "docid": "9959137", "title": "", "text": "a party to an evidentiary hearing only if there are genuine issues of material fact. Fed.R.Civ.P. 56; cf. Rule 50. (For the application of this principle to civil contempt, see CFTC v. Premex, Inc., 655 F.2d 779, 782 n. 2 (7th Cir.1981); In re Grand Jury Proceedings, 795 F.2d 226, 234 (1st Cir.1986); In re Bianchi, 542 F.2d 98 (1st Cir.1976).) There is no comparable principle in criminal cases because the prosecutor cannot move for a directed verdict or for summary judgment. The right to a hearing in a civil contempt proceeding if (but only if) there are material contested facts is implicit in the witness contempt statute itself. For by entitling the witness to show that there was “just cause” for his disobedience, 28 U.S.C. § 1826(a), the statute must presuppose that he have a reasonable opportunity to prove this. United States v. Powers, 629 F.2d 619, 626 (9th Cir.1980); In re Grand Jury Investigation, 545 F.2d 385, 388 (3d Cir.1976). The government says there are no genuine issues of material fact in this case. We disagree. 1. If a witness can establish that he has not only a genuine but also a reasonable fear of retaliation against himself or his family, he places on the government the burden either of taking reasonable steps to protect him against such retaliation or, at the very least, of explaining why it should not be required to take such steps. No cases so hold, but In re Grand Jury Proceedings, 605 F.2d 750, 752-53 (5th Cir.1979) (per curiam), treats the proposition as arguable, and to us it seems implicit in the equitable character of civil contempt (of which more shortly); it is therefore unnecessary to decide whether it is strictly a defense. There was no offer of protection here, because Freligh was given no opportunity to demonstrate that he or his family was in danger — a material fact, even if material only to the adequacy of the protective measures to which he would be entitled if he showed that the danger was real. 2. Piemonte v. United States, 367 U.S. 556," }, { "docid": "15099998", "title": "", "text": "F.2d at 728. We affirm the order in the instant case as well, not only because of the belated nature of the claim, as in Tse, but because the government, we think, was not fully responsible for the arguable deficiencies in its initial response. Sergeant McGreal was present at the contempt hearing, and the record reveals that the government was prepared to put him on the stand. Instead, following Agent Horan’s testimony, the district court deemed the government’s response sufficient and terminated the hearing. Under such circumstances, we cannot fully fault the government for not insisting on the presentation of further evidence. The order of contempt is affirmed. . A court may hold in civil contempt any grand jury witness who \"refuses to testify without just cause shown to comply with an order of the court to testify_” 28 U.S.C. § 1826(a). A showing that the questioning of such a witness was based on illegal electronic surveillance constitutes \"just cause\" for refusing to testify and precludes a finding of contempt. Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972); In re Grand Jury Proceedings, 786 F.2d 3, 7 (1st Cir.1986) (per curiam). . As here applicable, 18 U.S.C. § 3504(a) requires that, \"upon a claim\" by a grand jury witness that the questioning is based on illegal electronic surveillance, \"the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful\" surveillance. .In their affidavits, described more fully below, the several government investigators and attorneys characterize the 1985 surveillance as \"court-authorized.\" They also indicate that information derived therefrom was subsequently used at the trial of appellant's father (resulting in his conviction for narcotics offenses) — with the implication that the surveillance was determined to have been legal. The authorizing documents, however, have not been turned over to appellant for inspection as required by In re Lochiatto, 497 F.2d 803, 807-08 (1st Cir.1974); see also In re Grand Jury, 851 F.2d 499, 500 (1st Cir.1988) (per curiam); In re Mintzer, 511 F.2d 471, 472 n. 1 (1st Cir.1974) (per curiam), and no effort" }, { "docid": "2716203", "title": "", "text": "worked at the job the details of which she claimed to have forgotten. Kitchen, on the other hand, does not dispute that the three discrete events about which he is being questioned actually occurred, but claims that he does not remember the details of what happened on these three occasions. This claim may well expose him to a criminal prosecution, e.g., for perjury, but it is not so inherently incredible as to fall within the narrow exception justifying use of the awesome civil contempt power. In sum, on this record, the government has not proven by clear and convincing evidence that Kitchen's testimony before the grand jury is false and evasive. Thus, the judgment of contempt cannot stand. IV. CONCLUSION Because the procedures followed in the district court deprived appellant of due process, and because the government failed to carry its burden of proof, the judgment of contempt is reversed. The mandate shall issue forthwith. . The opinion in the prior case used pseudonyms for the corporation and individuals involved to preserve the secrecy of the grand jury proceedings. Kitchen was referred to as Employee B. The parties appear to be somewhat less concerned about secrecy in this case, since the appeal was filed under Kitchen’s real name. Nevertheless, because the panel that granted a stay pending appeal and expedited the appeal also ordered that all papers in this appeal be sealed, we will again use pseudonyms to refer to the corporation and individuals under investigation. However, to the extent that portions of the record are used in the present opinion they are deemed unsealed. . Since Kitchen is not incarcerated, the requirement of 18 U.S.C. § 1826(b) that appeals from orders of confinement under § 1826(a) be disposed of within thirty days of the filing of the notice of appeal is not strictly applicable. In re Weiss, 703 F.2d 653 at 660 n. 6 (2d Cir.1983); In re Rosahn, 671 F.2d 690, 693-94 (2d Cir. 1982). We have complied with it nonetheless. . We are inclined to agree . . . that it is inherently incredible that a 34-year-old" }, { "docid": "2716204", "title": "", "text": "the grand jury proceedings. Kitchen was referred to as Employee B. The parties appear to be somewhat less concerned about secrecy in this case, since the appeal was filed under Kitchen’s real name. Nevertheless, because the panel that granted a stay pending appeal and expedited the appeal also ordered that all papers in this appeal be sealed, we will again use pseudonyms to refer to the corporation and individuals under investigation. However, to the extent that portions of the record are used in the present opinion they are deemed unsealed. . Since Kitchen is not incarcerated, the requirement of 18 U.S.C. § 1826(b) that appeals from orders of confinement under § 1826(a) be disposed of within thirty days of the filing of the notice of appeal is not strictly applicable. In re Weiss, 703 F.2d 653 at 660 n. 6 (2d Cir.1983); In re Rosahn, 671 F.2d 690, 693-94 (2d Cir. 1982). We have complied with it nonetheless. . We are inclined to agree . . . that it is inherently incredible that a 34-year-old person, with no traumatic or medicinal reason for a memory loss, who worked for one-and-a-half years at a job that ended less than five years earlier would retain virtually no memory of any detail as to her salary, her hours, her coworkers, people she counseled, where she worked, where she lived at the time, or the nature of what she did. Weiss, supra, at 668. . Appellant also argues that the contempt proceeding was premature because the grand jury had not indicated by a vote that appellant’s testimony was evasive. We find this argument has no merit. LUMBARD, Circuit Judge, concurring and dissenting: I concur in all but parts III and IV of Chief Judge Feinberg’s opinion. I agree with my colleagues that however clear and convincing the evidence of a refusal to testify may be, the district court was required to hear the defendant, upon his request to be heard, before adjudging him in contempt. I also agree that the court should have permitted the defendant to make an offer of proof and should" }, { "docid": "23710827", "title": "", "text": "bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt the, court shall enter an order, fixing punishment.” . 28 U.S.C. § 1826: Recalcitrant Witnesses “(a) Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No period of such confinement shall exceed the life of (1) the court proceeding, or (2) the term of the grand jury, including extensions, before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months.” . The standards of proof are also affected. In a civil contempt action the proof of the defendants’ contempt must be clear and convincing, a higher standard than the preponderance of the evidence standard in most civil cases, but less than the beyond the reasonable doubt standard of criminal contempt proceedings. See United States v. Rizzo, 539 F.2d 458 (5th Cir. 1976). The level of proof is not at issue, however, in the instant case. . The fact that a notice was given and a hearing was conducted after the trial does not alter our conclusion. Delay of the summary contempt judgment until after the trial is proper and in some instances encouraged. Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952); In re Osborne, 344 F.2d 611, 616 (9th Cir. 1965). . We do not hold that the court can proceed under both sections (a) and (b) of Rule 42. We believe this might" }, { "docid": "9959141", "title": "", "text": "a defense; the distinction between fear and duress, we suggested, was the difference between vague unsubstantiated fears and a palpable imminent danger. To similar effect see Harris v. United States, 382 U.S. 162, 166-67, 86 S.Ct. 352, 355, 15 L.Ed.2d 240 (1965); United States v. Housand, 550 F.2d 818, 825 (2d Cir.1977). All three of these cases, however — Patrick, Harris, and Hou- sand-involved criminal rather than civil contempt. The considerations may be different in the civil setting. Maggio v. Zeitz, 333 U.S. 56, 76 n. 8, 68 S.Ct. 401, 411 n. 8, 92 L.Ed. 476 (1948). The policy against rewarding intimidation, noted earlier, may have greater application to civil contempt, and argue for a stricter standard. Yet there surely are some defenses to civil contempt, a good example being the excessive burdensomeness of a subpoena. In re Sealed Case, 827 F.2d 776, 778 (D.C.Cir.1987) (per curiam). (For a veritable catalog of defenses to civil contempt see In re Grand Jury Proceedings, 486 F.2d 85, 91 (3d Cir.1973).) The witness contempt statute itself, as we have noted, excuses the witness who has \"just cause\" for disobeying the order to testify, 28 U.S.C. § 1826(a), although the term \"just cause\" is not defined in the statute and there is no pertinent legislative history. Duress could well be regarded as a form of excessive burden on a witness ordered to testify, and therefore an apt parallel to the excessive burdensomeness of a subpoena; if so, duress might be a form of just cause. This suggestion derives color from the frequently repeated statement that \"punishment may not be imposed in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order.\" Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 1433 n. 9, 99 L.Ed.2d 721 (1988). Not too much should be made of this, however; the quoted passage has reference to the case \"where the grand jury [having] been finally discharged, a contumacious witness can no longer be confined since he then has no further opportunity to purge himself of" }, { "docid": "9959136", "title": "", "text": "§ 1826(a). The judge found that “the fear of retaliation expressed by Dennis Freligh as grounds for non-compliance with the prior order of this court is speculative and unsupported except for the self-serving statements of Dennis Freligh.” The judge directed that the running of Fre-Iigh’s ten-year prison term be suspended while he is incarcerated for contempt. The appeal challenges the denial of the request for a hearing before Chief Judge Baker. The only hearing that Freligh received was the one before Judge Mills on September 6, and it was perfunctory. Fre-ligh was given no opportunity to amplify or substantiate his fear of retaliation if he testified, or to address the question of the proper sanction for his contempt, if contempt it was. A federal civil contempt proceeding is a civil proceeding governed by the rules of civil procedure. Shakman v. Democratic Organization of Cook County, 533 F.2d 344, 352 (7th Cir.1976); Rogers v. Webster, 776 F.2d 607, 610 (6th Cir.1985) (per curiam); 3 Wright, Federal Practice and Procedure, Crim.2d, § 705 (1982). Those rules entitle a party to an evidentiary hearing only if there are genuine issues of material fact. Fed.R.Civ.P. 56; cf. Rule 50. (For the application of this principle to civil contempt, see CFTC v. Premex, Inc., 655 F.2d 779, 782 n. 2 (7th Cir.1981); In re Grand Jury Proceedings, 795 F.2d 226, 234 (1st Cir.1986); In re Bianchi, 542 F.2d 98 (1st Cir.1976).) There is no comparable principle in criminal cases because the prosecutor cannot move for a directed verdict or for summary judgment. The right to a hearing in a civil contempt proceeding if (but only if) there are material contested facts is implicit in the witness contempt statute itself. For by entitling the witness to show that there was “just cause” for his disobedience, 28 U.S.C. § 1826(a), the statute must presuppose that he have a reasonable opportunity to prove this. United States v. Powers, 629 F.2d 619, 626 (9th Cir.1980); In re Grand Jury Investigation, 545 F.2d 385, 388 (3d Cir.1976). The government says there are no genuine issues of material fact in this" }, { "docid": "14267831", "title": "", "text": "the grand jury which would hurt, directly or indirectly, members of his family, yet includes within the ambit of family members the target of the grand jury investigation who is a non-family member. The reasons asserted by Crededio for why he will not testify are inherently inconsistent and lack credibility. The only other argument which Crededio raises for our consideration is that grand jury leaks cause him to fear for his safety and the safety of his family if he testifies. These assertions of grand jury leaks are pure speculation, supported solely by the conclusory and self-serving statements of Crededio. These unsupported allegations fail to meet the “heavy burden” which Crededio bears to establish grand jury abuse. See, e.g., Matter of the Special April 1977 Grand Jury, 587 F.2d 889, 892 (7th Cir.1978). For the reasons stated above, we conclude that the district court did not abuse its discretion in denying Crededio’s motion for release. We do, however, direct the district court to periodically evaluate Crededio’s incarceration at reasonable intervals, or, in the court’s discretion, when requested by either party. See, e.g., Thom, at 740. At any rate, “the criminal contempt sanction is available ... [to] vindicate the court’s authority, see, e.g., United States v. Patrick, 542 F.2d 381, 384, 392-93 (7th Cir.1976) (four-year criminal contempt sentence imposed upon recalcitrant grand jury witness previously confined for civil contempt), cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977).” Simkin, 715 F.2d at 37. AFFIRMED. . The Recalcitrant Witness Statute, 28 U.S.C. § 1826, provides: § 1826. Recalcitrant witnesses (a) Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No" }, { "docid": "7136123", "title": "", "text": "conduct a thorough review. See Vekamaf Holland, B.V. v. Pipe Benders, Inc., 671 F.2d 1185 (8th Cir.1981). The district court need not rehear live testimony prior to adopting findings of fact where credibility plays a central role. See United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (permitting the district court to adopt a magistrate judge’s credibility findings in a criminal suppression hearing). Here, both Judges Utschig and Cristol conclusively concluded that the Debtor’s testimony was not credible. At the de novo proceeding, the Debtor did not testify. Accordingly, the Court adopts the credibility findings of both bankruptcy judges in conducting its review. 2. The Prima Facie Case In a civil contempt proceeding, the party seeking the contempt bears the initial burden of proving by clear and convincing evidence that the respondent violated a court order. Commodity Futures Trading Comm’n (CFTC) v. Wellington Precious Metals, Inc., 950 F.2d 1525, 1528 (11th Cir.1992), cert. denied, 506 U.S. 819, 113 S.Ct. 66, 121 L.Ed.2d 33 (1992); In re Shore, 193 B.R. 598, 601 (S.D.Fla.1996). This burden of proof is more exacting than the “preponderance of the evidence” standard but, unlike criminal contempt, does not require proof beyond a reasonable doubt. United States v. Rizzo, 539 F.2d 458, 465 (5th Cir.1976). Once a prima facie showing of a violation has been made, the burden of production shifts to the alleged eontemnor, who may defend his failure on the grounds that he was unable to comply. CFTC, 950 F.2d at 1528. If the alleged eontemnor makes a sufficient showing of impossibility, the burden of proving ability to comply then shifts to the party seeking to show contempt. See id. In this case, it is undisputed that the Chapter 7 Trustee met its initial burden of proving by clear and convincing evidence that the appellant did not comply with the terms of the bankruptcy court’s August 26, 1999 Turn Over Order. At the September 2, 1999 hearing, the appellant stipulated that he had not turned over assets or caused them to be turned over and that he had not provided" }, { "docid": "3588130", "title": "", "text": "similar proceedings are brought against him. Should his contentions be rejected at that time by the trial court, they will then be ripe for appellate review. Id. (footnote omitted). Ryan’s teaching in this respect could scarcely be clearer or more on point. Second, Congress itself has provided for appeals by contemnors that will, in some cases, occur during ongoing grand jury proceedings. In 1970, obviously long after Blair was decided, Congress enacted 28 U.S.C. § 1826, a comprehensive provision concerning recalcitrant witnesses in grand jury and judicial proceedings. The operative language of that provision empowers the District Court summarily to order the confinement of a witness when the witness “refuses without just cause to comply with an order of the court to testify or provide other information.” Id. § 1826(a). Thus, under the statutory structure now in place, a witness may raise in contempt proceedings before the district court defenses amounting to “just cause” for noncompliance with the court’s order. The witness may then secure appellate review of an adverse ruling. In the context of a subpoena duces tecum, we believe the teaching of Ryan is that the witness has “just cause” when compliance would be “unduly burdensome or otherwise unlawful.” Ryan, 402 U.S. at 532, 91 S.Ct. at 1582; see also In re Brummitt, 608 F.2d 640, 643 (5th Cir.1979). In addition, it seems to us that the claim that a subpoena was applied for and issued under the signature of unauthorized persons would constitute a cognizable claim of undue burden or unlawfulness under Ryan. We are therefore convinced that appellant’s argument satisfied the “just cause” requirement set out in section 1826 for defenses that may be interposed in contempt proceedings and on appeal from orders of contempt. Third, issues analogous to appellant’s have been litigated, and thus treated as ripe, in the contempt setting. The leading example is In re Subpoena of Persico, 522 F.2d 41 (2d Cir.1975). There, a witness subpoenaed to appear before a grand jury refused to answer certain questions concerning the identity of his employees. He was (twice) held in contempt and sentenced (the" }, { "docid": "23685005", "title": "", "text": "Ryan’s Coal Co., 785 F.2d 970, 984 (11th Cir.), cert. denied, 479 U.S. 853, 107 S.Ct. 187, 93 L.Ed.2d 120 (1986). Once a prima facie showing of a violation has been made, the burden of production shifts to the alleged contemnor, who may defend his failure on the grounds that he was unable to comply. Rylander, 460 U.S. at 757, 103 S.Ct. at 1552 (“Where compliance is impossible, neither the moving party nor the court has any reason to proceed with the civil contempt action. It is settled, however, that in raising this defense, the defendant has a burden of production.”); United States v. Roberts, 858 F.2d 698, 701 (11th Cir.1988); United States v. Hayes, 722 F.2d 723, 725 (11th Cir.1984). The burden shifts back to the initiating party only upon a sufficient showing by the alleged contemnor. The party seeking to show contempt, then, has the burden of proving ability to comply. Combs, 785 F.2d at 984 (“The party seeking the contempt citation retains the ultimate burden of proof ...”); In re Battaglia, 653 F.2d 419, 423 (9th Cir.1981). It is undisputed that CFTC and the State of Florida met their initial burden of proving by clear and convincing evidence that Weiss did not comply with the terms of the October 21, 1988 order to disgorge $2.8 million. He had not come forward with one dollar. The burden of production then shifted to Weiss. Weiss argues that he met this burden and properly established the defense of present inability to comply and that it was then up to CFTC and the State of Florida to prove that he was in fact capable of paying. We disagree. In order to succeed on the inability defense, the alleged contemnor “must go beyond a mere assertion of inability,” Hayes, 722 F.2d at 725, and establish that he has made “in good faith all reasonable efforts” to meet the terms of the court order he is seeking to avoid. Roberts, 858 F.2d at 701; Combs, 785 F.2d at 984 (“We construe this requirement strictly. ‘Even if the efforts he did make were “substantial,”" } ]

[ { "docid": "23014796", "title": "", "text": "936 (Fed.Cir.1984). Accordingly, we may reverse the district court if, inter alia, the district court prejudiced NP’s substantive rights by abusing its discretion in admitting or excluding evidence, see Munoz v. Strahm Farms, Inc., 69 F.3d 501, 36 USPQ2d 1499, 1501 (Fed.Cir.1995), or by giving legally erroneous jury instructions, see Jamesbury, 756 F.2d at 1558, 225 USPQ at 255. See generally 12 McLaughlin et al, Moore’s Federal Practice § 59.20 to 59.25, at 59-27 to 59-47 (3d ed.1997). II. As a general proposition, when reviewing a district court’s judgment involving federal antitrust law, we are guided by the law of the regional circuit in which that distriet court sits. See Loctite Corp. v. Ultra-seal Ltd, 781 F.2d 861, 875, 228 USPQ 90, 99 (Fed.Cir.1985) (“We must approach a federal antitrust claim as would a court of appeals in the circuit of the district court whose judgment we review.”) (citing Atari, Inc. v. JS & A Group, Inc., 747 F.2d 1422, 1438-40, 223 USPQ 1074, 1086-87 (Fed.Cir.1984) (in bane)); see also Cygnus Therapeutics Sys. v. ALZA Corp., 92 F.3d 1153, 1161, 39 USPQ2d 1666, 1672 (Fed.Cir.1996) (citing Loctite). However, we apply our own law, not regional circuit law, to resolve issues that clearly involve our exclusive jurisdiction. See Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1574-75, 37 USPQ2d 1626, 1631 (Fed.Cir.1996) (holding as a matter of Federal Circuit law that an allegation of inequitable conduct in the prosecution of a patent application cannot support a federal unfair competition claim) (citing Chrysler Motors Corp. v. Auto Body Panels, Inc., 908 F.2d 951, 953 15 USPQ2d 1469, 1470 (Fed. Cir.1990)). See generally Biodex Corp. v. Loredan Biomedical, Inc., 946 F.2d 850, 855-58, 20 USPQ2d 1252, 1256-59 (Fed.Cir.1991). Whether conduct in the prosecution of a patent is sufficient to strip a patentee of its immunity from the antitrust laws is one of those issues that clearly involves our exclusive jurisdiction over patent cases. It follows that whether a patent infringement suit is based on a fraudulently procured patent impacts our exclusive jurisdiction. Moreover, an antitrust claim premised on stripping" } ]

[ { "docid": "10927900", "title": "", "text": "291, that either Nycomed’s patent claims preceded those of Sonus or that Sonus’ patent is invalid under one or more provisions of the patent law. Currently béfore the Court are a series of motions to dismiss filed by Sonus, Nycomed, Braceo, Braceo International, DuPont Merck and ImaRx, all relating to issues of subject matter and personal jurisdiction under Rules 12(b)(1) and 12(b)(2) of the Federal Rules of Civil Procedure. ImaRx also raises the defense of failure to join an indispensable party under Rule 12(b)(7), Fed.R.Civ.P., and Braceo, Braceo International, DuPont Merck and ImaRx argue that plaintiffs have failed to state a claim under Rule 12(b)(6), Fed.R.Civ.P. The briefing was extensive and the briefs voluminous. The Court heard approximately two-and-one-half hours of argument on December 9, 1997. The Court has carefully considered all the written and oral arguments of the parties and their analysis of each issue presented, as well as the statutory and case authority cited by them. For the reasons that follow, the Court finds that it lacks jurisdiction over .most of the claims and most of the parties before it. II. DISCUSSION A Subject Matter Jurisdiction For this Court to have jurisdiction, there must have been be an actual ease or controversy between the parties at the time the action was commenced. In the patent context, an actual controversy exists if the party seeking a declaratory judgment demonstrates either that there is (1) an explicit threat or other action by a patentee that creates a “reasonable apprehension” on the part of the plaintiff that it will face an infringement suit, and (2) present activity that could constitute infringement or “concrete steps taken with the intent to conduct such activity.” Cygnus Therapeutics Systems v. ALZA Corp., 92 F.3d 1153, 1158-59 (Fed.Cir.1996); BP Chemicals Ltd. v. Union Carbide Corp., 4 F.3d 975, 978 (Fed.Cir.1993). Although plaintiffs do not have to prove that they were confronted with an express charge of infringement, “more is required than the existence of an adversely held patent.” BP Chemicals Ltd. v. Union Carbide Corp., 4 F.3d at 978. Ultimately, the Court must look to the" }, { "docid": "6423882", "title": "", "text": "relying on Drew Chemical Co. v. Hercules Inc., 407 F.2d 360, 362 (2d Cir.1969), that its letters are merely banter between the parties amounting to a business argument rather than a threat to file suit. (Mot. at 4.) Moreover, Precor contends that under Phillips Plastics, correspondence alone between the patentee and declaratory plaintiff is insufficient to\" create a reasonable apprehension of suit in the declaratory plaintiff. (Id.) However, both Drew Chemical Co. and Phillips Plastics are distinguishable from the present case. In Drew Chemical Co., the court found that the patentee’s oral hints of infringement were insufficient to create a reasonable apprehension of suit in the declaratory plaintiff. Drew Chemical Co., 407 F.2d at 362. There, the court recognized that the communications between the two parties were made during the course of license negotiations. Id. From these facts, the court characterized the patentee’s comments as mere banter between parties. Id. In the present case, Precor’s correspondence was not communicated during the course of any negotiations between Precor and Plaintiff. Rather, the correspondence was sent as a literary warning shot across Plaintiffs bow as means to stop Plaintiff from marketing its device. Moreover, Preeor’s letter contained far more detail than the cursory statements made by the patentee in Drew Chemical Co. Accordingly, Drew Chemical Co. is not controlling in the present case. . Likewise, the Court also finds Precor’s reliance on Phillips Plastics to be unpersuasive. There, the patentee sent certain letters to the declaratory judgment plaintiff indicating that it owned the rights to certain patents and offering to open license negotiations with the declaratory plaintiff. Phillips Plastics Corp., 57 F.3d at 1052. In response to the letters, the declaratory plaintiff commenced brief license negotiations with the patentee. Id. The declaratory plaintiff then filed its declaratory relief action without a clear termination of the license negotiations. Id. Based on this factual scenario, the court held that the declaratory plaintiff did not have a reasonable expectation of suit based on the correspondence between the parties absent a termination of the license negotiations. Id. at 1055-54. Here, Preeor’s actions are readily distinguishable from" }, { "docid": "5333413", "title": "", "text": "a reasonable apprehension of suit. However, in that case, Bard had previously entered into a licensing agreement with Schwartz and had paid royalties under that agreement. Furthermore, when Bard stopped making the royalty payments, Schwartz sued to recover under the licensing agreement. The court found that the fact that Schwartz had sued to enforce the license created a reasonable apprehension of suit regarding the underlying patent. However, the relationships of the parties and the factual background in Bard are significantly different than those in the instant case. Here, the parties had no prior relationship. Furthermore, at no point did Peters put Ryobi to the choice of paying royalties or suffering the consequences. As noted above, Peters’ communication to Ryobi was merely a statement of his negotiation position. The overall thrust of Ryobi’s argument seems to be that whenever a patent holder attempts to open business negotiations concerning the patent, a reasonable apprehension of suit on the part of the alleged infringer necessarily follows. It may be that businesses such as Ryobi routinely assume that all proposed negotiations either resolve by contract or by lawsuit. However, Jerry Peters is not a large business with ample resources to support a major litigation effort. Peters is an individual who has created a small side line business in his home workshop. He is employed on a full time basis in a position not relevant to this discussion. Peters sells his product to Robert Bosch Power Tool Corporation who sells the product under Bosch’s name. It would be unfair to apply any assumption regarding the decision to bring complicated litigation to such an individual. The court finds that the “totality of the circumstances” does not support a reasonable apprehension of suit by Ryobi. For the above reasons, the court finds that no justiciable controversy exists in this case. II. Personal Jurisdiction Peters further argues that this court does not have personal jurisdiction over him. When the court’s personal jurisdiction over the defendant is challenged, the plaintiff has the burden of showing that such jurisdiction exists. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189," }, { "docid": "14076443", "title": "", "text": "patent rights without subjecting itself to jurisdiction in a foreign forum.” Red Wing Shoe Co., 148 F.3d at 1360-61. “[Ajttempts to sell a product or license a patent do not give rise to [specific] personal jurisdiction in declaratory judgment actions for noninfringement or invalidity.” Radio Sys. Corp., 638 F.3d at 789. “[Ojnly enforcement or defense efforts related to the patent ... are to be considered for establishing specific personal jurisdiction.” Autogenomics, Inc. v. Oxford Gene Tech. Ltd., 566 F.3d 1012, 1019 (Fed.Cir.2009). Informing third parties about one’s patent rights can contribute to a finding of personal jurisdiction when combined with efforts to enforce — particularly where intertwined with activity to sell or to license — a patent. In Inamed Corp. v. Kuzmak, for example, the Court of Appeals for the Federal Circuit found personal jurisdiction over a patentee consistent with due process requirements because it had sent a cease-and-desist letter to the plaintiff in the forum state, negotiated four license agreements (including an exclusive license agreement) with other parties in the forum state, and received over $1.3 million dollars in connection with those license agreements. See Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1361-62 (Fed.Cir. 2001) (“Other activities are required in order for a patentee to be subject to personal jurisdiction in the forum.”) (quoting Genetic Implant Sys., Inc. v. Core-Vent Corp., 123 F.3d 1455, 1458 (Fed.Cir.1997)). And, in Akro Corp. v. Luker, a patentee was found subject to personal jurisdiction consistent with the due process where it had “granted an exclusive license to one of the accused infringer’s competitors” in the forum state. See Akro Corp. v. Luker, 45 F.3d 1541, 1548 (Fed.Cir.1995). The exclusive license placed upon the patentee “continuing obligations” and resulted in substantial contacts with the forum state. Id. at 1456. The Federal Circuit has distinguished, in the context of specific personal jurisdiction, between “[a]n offer to license” and “an arms-length negotiation in anticipation of a long-term continuing business relationship.” Red Wing Shoe Co., 148 F.3d at 1361 (citing Burger King, 471 U.S. at 479, 105 S.Ct. 2174). But where, in the context of general jurisdiction," }, { "docid": "13489187", "title": "", "text": "argument. Medtronic’s allegation that ACS took inconsistent positions regarding the effect of various references is also unsubstantiated. We have reviewed the record and agree with the district court that ACS’s positions regarding the Bonzel references and the-Nordenstrom reference were not inconsistent. Yock’s position was, consistently, that neither the Bonzel references nor Nordenstrom disclosed a shortened guide-wire lumen that also remained within the guiding catheter. Regarding an intent to deceive, Med-tronic argues that ACS’s intent should be inferred based on the alleged materiality of ACS’s alleged misconduct. As noted, we have already determined that Medtronic failed to make a - showing that ACS engaged in material misconduct. As a result, the basis for the inference Medtronic wishes us to draw is missing. And Med-tronic provides no independent showing of intent. Accordingly, Medtronic has failed to carry its burden with regard to intent. Medtronic also makes a collateral attack on the finding of no inequitable conduct, alleging that the district court abused its discretion by not permitting discovery into the negotiations surrounding the settlement agreement between ACS and Schneider. As to discovery matters, we have held that Federal Circuit law applies when deciding whether particular written or other materials are discoverable in a patent case, if those materials relate to an issue of substantive patent law. In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 803, 53 USPQ2d 1747,1750 (Fed. Cir.2000); Truswal Sys. Corp. v. Hydro-Air Eng’g, Inc., 813 F.2d 1207, 1212, 2 USPQ2d 1034, 1038 (Fed.Cir.1987). In the present case, a determination of the materiality of the settlement agreement implicates the substantive patent issue of inequitable conduct. We therefore review the district court’s refusal to permit discovery into the settlement negotiations under Federal Circuit law. Decisions concerning discovery matters are reviewed by this court under the abuse of discretion standard. Heat & Control, Inc. v. Hester Industries, Inc., 785 F.2d 1017, 1022, 228 USPQ 926, 930 (Fed.Cir.1986); Cygnus Therapeutics Sys. v. ALZA Corp., 92 F.3d 1153, 1161 n. 2, 39 USPQ2d 1666, 1672 n. 2 (Fed.Cir.1996). In light of Medtronic’s failure to show the materiality of the settlement agreement and, hence," }, { "docid": "6423883", "title": "", "text": "a literary warning shot across Plaintiffs bow as means to stop Plaintiff from marketing its device. Moreover, Preeor’s letter contained far more detail than the cursory statements made by the patentee in Drew Chemical Co. Accordingly, Drew Chemical Co. is not controlling in the present case. . Likewise, the Court also finds Precor’s reliance on Phillips Plastics to be unpersuasive. There, the patentee sent certain letters to the declaratory judgment plaintiff indicating that it owned the rights to certain patents and offering to open license negotiations with the declaratory plaintiff. Phillips Plastics Corp., 57 F.3d at 1052. In response to the letters, the declaratory plaintiff commenced brief license negotiations with the patentee. Id. The declaratory plaintiff then filed its declaratory relief action without a clear termination of the license negotiations. Id. Based on this factual scenario, the court held that the declaratory plaintiff did not have a reasonable expectation of suit based on the correspondence between the parties absent a termination of the license negotiations. Id. at 1055-54. Here, Preeor’s actions are readily distinguishable from the parties in Phillips Plastics because the parties never engaged in any form of negotiations. Therefore, Phillips Plastics does not control the present action. Finally, Precor additionally contends that the Court’s Order regarding anticipatory filing has already concluded that Precor’s correspondence could not have created a reason able apprehension of suit on the part of Plaintiff. (Mot. at 5.) However, Preeor misconstrues the language of the Court’s Order to support its position. As the Court recognized, Precor’s letter could not have created a reasonable apprehension of imminent suit in Plaintiff within the meaning of the decisions in Amerada and Ward. However, the standards for determining whether a declaratory plaintiff possessed a reasonable apprehension of suit under § 2201 are not coextensive with the inquiry set forth in Amerada and Ward for determining whether a case was anticipatorily filed. Both Amerada and Ward involved the determination of whether the declaratory plaintiffs action was commenced as a bad faith, anticipatory filing for purposes of disregarding the first-to-file rule. See Ward v. Follett Corp., 158 F.R.D. 645, 648" }, { "docid": "13489188", "title": "", "text": "and Schneider. As to discovery matters, we have held that Federal Circuit law applies when deciding whether particular written or other materials are discoverable in a patent case, if those materials relate to an issue of substantive patent law. In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 803, 53 USPQ2d 1747,1750 (Fed. Cir.2000); Truswal Sys. Corp. v. Hydro-Air Eng’g, Inc., 813 F.2d 1207, 1212, 2 USPQ2d 1034, 1038 (Fed.Cir.1987). In the present case, a determination of the materiality of the settlement agreement implicates the substantive patent issue of inequitable conduct. We therefore review the district court’s refusal to permit discovery into the settlement negotiations under Federal Circuit law. Decisions concerning discovery matters are reviewed by this court under the abuse of discretion standard. Heat & Control, Inc. v. Hester Industries, Inc., 785 F.2d 1017, 1022, 228 USPQ 926, 930 (Fed.Cir.1986); Cygnus Therapeutics Sys. v. ALZA Corp., 92 F.3d 1153, 1161 n. 2, 39 USPQ2d 1666, 1672 n. 2 (Fed.Cir.1996). In light of Medtronic’s failure to show the materiality of the settlement agreement and, hence, the relevance of the evidence it would be seeking in discovery, we discern no abuse of discretion. Additionally, we are mindful, as was the district court, of the policy in favor of protecting settlement negotiations from being admitted as evidence, thus serving to encourage settlements. See Fed. R.Evid. 408; 23 Charles Alan Wright & Kenneth W. Graham Jr., Federal Practice and Procedure § 5302 (1980) (discussing Rule 408 and the policies it promotes). C. Denial of the Motion for New Trial 1. As stated earlier, the district court precluded Medtronic from introducing various types of evidence at trial. These exclusions had the effect of precluding Med-tronic from: (1) showing that features of the Falcon catheter are covered by Med-tronic’s '556 patent; (2) using legal opinion letters prepared for the '548 and '273 patents; (3) discussing Medtronic’s consultation with legal counsel in its effort to design around the '548 and '273 patents; and (4) discussing the procedural history of the case. Medtronic argues that the district court erred and a new trial is warranted under the" }, { "docid": "5333412", "title": "", "text": "a declaratory action, to grant Ryobi a general release as to the subject matter of the action somehow constitutes an eminent threat to sue. Even if the premise is true, which the court doubts, this argument must fail because “later events may not create jurisdiction where none existed at the time of filing.” Spectronics Corp. v. H.B. Fuller Co., Inc., 940 F.2d 631, 635 (Fed.Cir.1991). That is, “[t]he presence or absence of jurisdiction must be determined on the facts existing at the time the complaint under consideration was filed.” Arrowhead, 846 F.2d at 734, n. 2. Clearly, Ryobi can not “bootstrap” jurisdiction by relying on statements that were made during post filing discovery. Ryobi’s second argument is that “Peters’ demands for royalty payments from Ryobi constitute yet another factor in favor of Ryobi’s reasonable apprehension of an infringement suit.” Plaintiff’s Memorandum in Opposition at 11. Ryobi cites C.R. Bard, Inc. v. Schwartz, 716 F.2d 874 (Fed.Cir.1983) as authority for a per se rule, applicable to these facts, that a demand for royalty payment must indicate a reasonable apprehension of suit. However, in that case, Bard had previously entered into a licensing agreement with Schwartz and had paid royalties under that agreement. Furthermore, when Bard stopped making the royalty payments, Schwartz sued to recover under the licensing agreement. The court found that the fact that Schwartz had sued to enforce the license created a reasonable apprehension of suit regarding the underlying patent. However, the relationships of the parties and the factual background in Bard are significantly different than those in the instant case. Here, the parties had no prior relationship. Furthermore, at no point did Peters put Ryobi to the choice of paying royalties or suffering the consequences. As noted above, Peters’ communication to Ryobi was merely a statement of his negotiation position. The overall thrust of Ryobi’s argument seems to be that whenever a patent holder attempts to open business negotiations concerning the patent, a reasonable apprehension of suit on the part of the alleged infringer necessarily follows. It may be that businesses such as Ryobi routinely assume that all" }, { "docid": "11072864", "title": "", "text": "The court does not agree. In fact, as stated above, the aim of a declaratory judgment is to relieve the plaintiff from uncertainty and delay regarding its legal rights. Goodyear, 824 F.2d at 956. It would be unfair to require imminent apprehension of an infringement suit when a defendant could delay such suit until all other enforcement efforts had failed. Arrowhead, 846 F.2d at 736. Resolving the uncertainty and anxiety resulting from a looming lawsuit is, indeed, the purpose of the Declaratory Judgment Act. See Shell Oil Co., 970 F.2d at 889 (“the Declaratory Judgment Act was intended to protect threatened parties ...”). Hence, the court finds no fault with Océ wishing to determine this real and tangible issue in a prompt fashion. Lastly, Kodak argues in its brief supporting its motion to dismiss that it had fully intended licensing discussions to continue after the March 31, 1991 meeting, and that Kodak would only begin “consideration of other appropriate actions” once licensing discussions had failed. Licensing discussions did fail. Océ steadfastly main tained its position that its 2500 copier did not infringe Kodak’s ’387 patent. And Kodak equally tenaciously maintained its infringement position and the requirements for a license. So, at the conclusion of the March 31 meeting, Océ determined that the discussions were fruitless and ended the negotiations. And, while it was Océ who terminated these discussions, it is not a prerequisite that negotiations must terminate naturally or amicably, nor that the defendant must be the party to terminate negotiations, for a declaratory judgment plaintiff to establish jurisdiction. It is enough that the defendant’s conduct “be such as to indicate defendant’s intent to enforce its patent.” Arrowhead, 846 F.2d at 736. Therefore, Kodak’s argument that it had intended negotiations to continue does not work to defeat jurisdiction. II. Conclusion Based on Kodak’s express charges of infringement, the conclusions of Kodak’s legal staff regarding Océ’s alleged infringement, Kodak’s refusal to modify its position regarding the ’387 patent, Kodak’s statement in its November 18, 1991 letter that it would consider other appropriate action if license discussions broke down, and Kodak’s reference" }, { "docid": "3323071", "title": "", "text": "of Federal Circuit antitrust law, at a time that we evaluated all antitrust issues under the law of the regional circuits, in affirming a district court’s dismissal of both a Declaratory Judgment Action for invalidity and a Walker Process claim: “It is enough to simply point out that the same facts that compel the conclusion that [the plaintiff] failed to establish declaratory judgment jurisdiction for the district court also compel the conclusion that no reasonable fact finder could find that [the defendant] has acted to enforce [its] patent.” Cygnus Therapeutics Sys. v. ALZA Corp., 92 F.3d 1153, 1162 (Fed.Cir.1996). In other words, if the patentee has done nothing but obtain a patent in a manner that the plaintiff believes is fraudulent, the courts lack jurisdiction to entertain either a Declaratory Judgment Action or a Walker Process claim. See Gen-Probe Inc. v. Vysis, Inc., 359 F.3d 1376, 1379 (Fed.Cir.2004). (iv) Fraud on the PTO Unitherm’s Walker Process claim alleges that ConAgra attempted to enforce a patent that it obtained only because it defrauded the PTO. We have consistently explained that Walker Process fraud is a variant of common law fraud, see, e.g., In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 807 (Fed.Cir.2000); C.R. Bard, Inc. v. M3 Sys., Inc., 157 F.3d 1340, 1364 (Fed.Cir.1998); Nobelphamna, 141 F.3d at 1069-71, and that the elements of common law fraud include: (1) a representation of a material fact, (2) the falsity of that representation, (3) the intent to deceive or, at least, a state of mind so reckless as to the consequences that it is held to be the equivalent of intent (scienter), (4) a justifiable reliance upon the misrepresentation by the party deceived which induces him to act thereon, and (5) injury to the party deceived as a result of his reliance on the misrepresentation. Spalding, 203 F.3d at 807 (citations omitted). Our determination of whether or not to strip ConAgra of its antitrust immunity therefore requires us to apply the facts of this case to each of these elements: The first element of the alleged fraud was ConAgra’s relevant material representation" }, { "docid": "23105909", "title": "", "text": "Circuit Judge BRYSON. BRYSON, Circuit Judge, concurring in the result. Under our law, as things stood before the Supreme Court’s decision in Medlm-mune, the district court’s order in this case was correct. ST, the patentee, had offered a license to SanDisk, but had not threatened suit and had sought to continue licensing negotiations. Although ST had made a detailed showing as to why it believed SanDisk’s products were within the scope of its patent rights, there is nothing exceptional in that. In the typical case, we would expect competent patent counsel who offers a license to another party to be prepared to demonstrate why such a license is required. By the time the suit was brought, ST had done nothing to give SanDisk cause to be in reasonable apprehension of suit, and in fact ST had expressly stated that it did not intend to sue SanDisk. In short, ST was simply availing itself of the safe haven our cases had created for patentees to offer licenses without opening themselves up to expensive litigation. See, e.g., Phillips Plastics Corp. v. Kato Hatsujou Kabushiki Kaisha, 57 F.3d 1051, 1054 (Fed.Cir.1995); Shell Oil Co. v. Amoco Corp., 970 F.2d 885, 888 (Fed.Cir.1992). The decision in Medlmmune dealt with a narrow issue: whether a declaratory judgment action can be brought by a patent licensee without terminating the licensing agreement. Footnote 11 of the Med-lmmune opinion, however, went further and criticized this court’s “reasonable apprehension of suit” test for declaratory judgment jurisdiction. I agree with the court that the footnote calls our case law into question and would appear to make declaratory judgments more readily available to parties who are approached by patentees seeking to license their patents. In particular, the reasoning of the Medlm-mune footnote seems to require us to hold that the district court in this case had jurisdiction to entertain SanDisk’s declaratory judgment action. For that reason I concur in the judgment of the court in this case reversing the jurisdictional dismissal of the complaint. I think it is important, however, to point out the implications of the footnote in Medlmmune as" }, { "docid": "23105899", "title": "", "text": "a party learns of the existence of a patent owned by another or even perceives such a patent to pose a risk of infringement, without some affirmative act by the patentee. But Article III jurisdiction may be met where the patentee takes a position that puts the declaratory judgment plaintiff in the position of either pursuing arguably illegal behavior or abandoning that which he claims a right to do. We need not define the outer boundaries of declaratory judgment jurisdiction, which will depend on the application of the principles of declaratory judgment jurisdiction to the facts and circumstances of each case. We hold only that where a patentee asserts rights under a patent based on certain identified ongoing or planned activity of another party, and where that party contends that it has the right to engage in the accused activity without license, an Article III case or controversy will arise and the party need not risk a suit for infringement by engaging in the identified activity before seeking a declaration of its legal rights. See id. Contra Cygnus Therapeutics Sys. v. ALZA Corp., 92 F.3d 1153 (Fed.Cir.1996) (holding that declaratory judgment jurisdiction was not supported where the “patentee does nothing more than exercise its lawful commercial prerogatives and, in so doing, puts a competitor in the position of having to choose between abandoning a particular business venture or bringing matters to a head by engaging in arguably infringing activity”). Our holding is consistent with decisions of other courts in various cases unrelated to patent licensing. See, e.g., Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1085 (9th Cir.2000) (finding declaratory judgment jurisdiction based on trademark owner’s cease and desist letter despite the fact that trademark owner offered to waive all trademark infringement and related claims); GNB Battery Tech., Inc. v. Gould, Inc., 65 F.3d 615, 620 (7th Cir.1995) (finding declaratory judgment jurisdiction where declaratory judgment plaintiff filed action in anticipation of potential action by the defendant based on new legislation although the defendant had not indicated whether or when it may act); Kunkel v. Cont’l Cas. Co.," }, { "docid": "10927901", "title": "", "text": "and most of the parties before it. II. DISCUSSION A Subject Matter Jurisdiction For this Court to have jurisdiction, there must have been be an actual ease or controversy between the parties at the time the action was commenced. In the patent context, an actual controversy exists if the party seeking a declaratory judgment demonstrates either that there is (1) an explicit threat or other action by a patentee that creates a “reasonable apprehension” on the part of the plaintiff that it will face an infringement suit, and (2) present activity that could constitute infringement or “concrete steps taken with the intent to conduct such activity.” Cygnus Therapeutics Systems v. ALZA Corp., 92 F.3d 1153, 1158-59 (Fed.Cir.1996); BP Chemicals Ltd. v. Union Carbide Corp., 4 F.3d 975, 978 (Fed.Cir.1993). Although plaintiffs do not have to prove that they were confronted with an express charge of infringement, “more is required than the existence of an adversely held patent.” BP Chemicals Ltd. v. Union Carbide Corp., 4 F.3d at 978. Ultimately, the Court must look to the “totality of circumstances.” Shell Oil Co. v. Amoco Corp., 970 F.2d 885, 888 (Fed. Cir.1992). With respect to Braceo and Braceo international, all that plaintiffs offer in their attempts to establish an actual case or controversy is the existence of the Braceo patents, which they allege cover Optison’s use of perfluoroearbon gas, and the fact that Braceo was a party to the action that sought to force the FDA to regulate all ultrasound contrast agents in the same manner. There is no allegation that either Braceo or Braceo International made an explicit threat or engaged in any other activity that could have created a reasonable apprehension of suit on the part of MBI or Mallinckrodt. The fact that the Braceo companies hold patents, which may be infringed by certain of Optison’s uses, is not enough. BP Chemicals Ltd. v. Union Carbide Corp., 4 F.3d at 978. Nor is it sufficient that Braceo ■ sued the FDA, and that MBI — which was not initially a party to the FDA action — sought to intervene and" }, { "docid": "8432729", "title": "", "text": "127, 127 S.Ct. 764.). The Federal Circuit has viewed “this inquiry through the lens of [Article III] standing” doctrine. Id. at 1338. If the declaratory judgment plaintiff can show an injury in fact traceable to the patentee, the dispute is a case or controversy under Article III. See id. “A patentee can cause ... an injury in a variety of ways [including] by creating a reasonable apprehension of an infringement suit, demanding the right to royalty payments, or creating a barrier to the regulatory approval of a product that is necessary for marketing.” Id. at 1339. D2L Ltd. and Desire2Learn contend that they were injured because Blackboard created a reasonable apprehension of an infringement suit on the '853 patent. The Court must determine whether each plaintiff has standing. See Brown v. Hovatter, 2006 WL 2927547, at *3 (D.Md. Oct. 11, 2006). b. Reasonable Apprehension of Suit “The reasonableness of a party’s apprehension [of suit] is judged using an objective standard.” Vanguard Research, Inc. v. PEAT, Inc., 304 F.3d 1249, 1254 (Fed.Cir.2002). “Although the best evidence of a reasonable apprehension of suit comes in the form of an express threat of litigation, an express threat is not required.” Id. The Court looks to the totality of the circumstances as they were when the declaratory judgment suit was filed. Id.; Prasco, 537 F.3d at 1337. A plaintiff “must show more than the nervous state of mind of a possible infringer, but does not have to show that the patentee is poised on the courthouse steps.” Vanguard Research, 304 F.3d at 1254-55. The Plaintiffs argue that Blackboard created a reasonable apprehension of suit on the '853 patent by (1) suing on the '138 and '396 patents, which cover the same technology; (2) implying in settlement negotiations that it would assert the '853 patent; and (3) refusing to agree to the standstill agreement. Blackboard counters that prior litigation on different patents is insufficient to create jurisdiction; an affirmative act with respect to the patent-in-suit is required. Blackboard also contends that it never threatened to enforce the '853 patent and that its refusal to enter" }, { "docid": "23105900", "title": "", "text": "id. Contra Cygnus Therapeutics Sys. v. ALZA Corp., 92 F.3d 1153 (Fed.Cir.1996) (holding that declaratory judgment jurisdiction was not supported where the “patentee does nothing more than exercise its lawful commercial prerogatives and, in so doing, puts a competitor in the position of having to choose between abandoning a particular business venture or bringing matters to a head by engaging in arguably infringing activity”). Our holding is consistent with decisions of other courts in various cases unrelated to patent licensing. See, e.g., Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1085 (9th Cir.2000) (finding declaratory judgment jurisdiction based on trademark owner’s cease and desist letter despite the fact that trademark owner offered to waive all trademark infringement and related claims); GNB Battery Tech., Inc. v. Gould, Inc., 65 F.3d 615, 620 (7th Cir.1995) (finding declaratory judgment jurisdiction where declaratory judgment plaintiff filed action in anticipation of potential action by the defendant based on new legislation although the defendant had not indicated whether or when it may act); Kunkel v. Cont’l Cas. Co., 866 F.2d 1269, 1274 (10th Cir.1989) (affirming exercise of declaratory judgment jurisdiction over suit seeking declaratory judgment for determination of value of insurance coverage even though existence of coverage remained dependent upon the outcome of a collateral action and noting that “[t]he contingent nature of the right or obligation in controversy will not bar a litigant from seeking declaratory relief when the circumstances reveal a need for present adjudication”); see also IMS Health, Inc. v. Vality Tech. Inc., 59 F.Supp.2d 454 (E.D.Pa.1999) (holding that requirements for declaratory judgment jurisdiction were satisfied where copyright holder had not indicated it was going to file suit but had taken positions and made demands such that the declaratory judgment plaintiff justifiably believed that copyright holder might take such action in the future and noting that “[i]t is quite possible for two parties to simultaneously consider nonlitigious settlement of a dispute, while at the same time maintaining an awareness that either settlement is improbable or that litigation is equally likely”); N. Shore Gas Co. v. Salomon, Inc., 896 F.Supp. 786," }, { "docid": "3323070", "title": "", "text": "even in the absence of overt enforcement actions. When the defendant’s conduct, including its statements, falls short of an express charge, one must consider the “totality of the circumstances” in determining whether that conduct meets the first prong of the test [for jurisdiction to hear a Declaratory Judgment Action], If the circumstances warrant, a reasonable apprehension may be1 found in the absence of any communication from defendant to plaintiff. If, on the other hand, defendant has done nothing but obtain a patent, there can be no basis .for the required apprehension, a rule that protects quiescent patent owners against unwarranted litigation. Arrowhead Indus. Water, Inc. v. Ecolochem, Inc., 846 F.2d 731, 736 (Fed.Cir.1988). We therefore hold that, as a matter of Federal Circuit antitrust law, the standards that we have developed for determining jurisdiction in a Declaratory Judgment Action of patent invalidity also define the minimum level of “enforcement” necessary to expose the patentee to a Walker Process claim .for attempted monopolization. This holding adopts the reasoning that we once applied prior to our announcement of Federal Circuit antitrust law, at a time that we evaluated all antitrust issues under the law of the regional circuits, in affirming a district court’s dismissal of both a Declaratory Judgment Action for invalidity and a Walker Process claim: “It is enough to simply point out that the same facts that compel the conclusion that [the plaintiff] failed to establish declaratory judgment jurisdiction for the district court also compel the conclusion that no reasonable fact finder could find that [the defendant] has acted to enforce [its] patent.” Cygnus Therapeutics Sys. v. ALZA Corp., 92 F.3d 1153, 1162 (Fed.Cir.1996). In other words, if the patentee has done nothing but obtain a patent in a manner that the plaintiff believes is fraudulent, the courts lack jurisdiction to entertain either a Declaratory Judgment Action or a Walker Process claim. See Gen-Probe Inc. v. Vysis, Inc., 359 F.3d 1376, 1379 (Fed.Cir.2004). (iv) Fraud on the PTO Unitherm’s Walker Process claim alleges that ConAgra attempted to enforce a patent that it obtained only because it defrauded the PTO. We" }, { "docid": "19255731", "title": "", "text": "to refuse to license is essence of patent holder’s right; patent law rewards invention disclosure by grant of limited monopoly in exploitation of the invention). The Court’s holding on this issue is supported in part by the recent decision in Intergraph Corp. v. Intel Corp., 195 F.3d 1346 (Fed.Cir.1999). There, the Federal Circuit stated that generally, unilateral conduct which is permitted under patent and copyright laws is not subject to antitrust scrutiny. See id. at 1362-63. It noted: [T]he antitrust laws do not negate the patentee’s right to exclude others from patent property.... In Image Technical Services the Ninth Circuit reported that it had found no reported case in which a court had imposed antitrust liability for a unilateral refusal to sell or license a patent or copyright. 125 F.3d at 1216. Nor have we. In accord is the joint statement of the United States Department of Justice and Federal Trade Comm’n, Antitrust Guidelines for the Licensing of Intellectual Property 4 (1995) that market power does not impose on the intellectual property owner an obligation to license the use of that property to others. Id. at 4. See 35 U.S.C. § 271(d)(4) (No patent owner otherwise entitled to relief for infringement or contributory infringement of a patent shall be denied relief or deemed guilty of misuse or illegal extension of the patent right by reason of his having done one or more of the following: ... (4) refused to license or use any rights to the patent). See also, e.g., Miller Insituform, Inc. v. Insituform of North Am., Inc., 830 F.2d 606, 609 (6th Cir.1987) (A patent holder who lawfully acquires a patent cannot be held liable under section 2 of the Sherman Act for maintaining the [market] power he lawfully acquired by refusing to license the patent to others.); United States v. Westinghouse Electric Corp., 648 F.2d 642, 647-48 (9th Cir. 1981) (patent holder has the untrammeled right to license or not, exclusively or otherwise); SCM Corp. v. Xerox Corp., 645 F.2d 1195, 1206-07 (2d Cir. 1981). Intergraph, 195 F.3d at 1362-63. Moreover, although it did not discuss the" }, { "docid": "23670154", "title": "", "text": "do not produce their fiber by the patented process. With respect to members of either domestic industry, the Commission refused to include Northern Telecom, Inc. (NTI), which sells fiber in the United States imported from its parent Northern Telecom, Ltd. (NTL) which manufactures the fiber in Canada under a license from Corning. The Commission also excluded American Fiberoptics and Light-wave Technologies Co., alleged by Coming to be infringers of its patents, and Valtec Corporation, an alleged infringer which has become a licensee. Optical waveguide fiber is sold in both cabled and uncabled form. Uncabled fiber is sold to firms which cable the fiber for use in telecommunications and other applications. Corning makes and sells uncabled fiber' only. AT & T sells only cabled fiber. ITT makes both uncabled and cabled fiber, but its license contains restrictions on its sale of uncabled fiber. SpecTran sells only uncabled fiber. Sumitomo sells both cabled and uncabled fiber, competing with Corning in sales of uncabled fiber. In 1980, Sumitomo began importing and selling optical waveguide fiber in the United States. The U.S. market for optical waveguide fiber has grown with increasing rapidity since 1982 and is expected to double in size from 1985 to 1988. Detailed findings were made concerning the domestic producers’ failed attempts to expand their production capacity to supply the burgeoning market. Corning itself has had to import fiber from overseas to meet its needs, as have other domestic manufacturers. Demand has outstripped supply across the industry. Coming’s licensees and some of the cablers who sell Coming fiber testified that they are unaware of any business lost to Sumitomo. Sumitomo’s sales efforts have been hampered by a lack of adequate product support service and marketing, and by an inability to offer quick delivery. The record indicates that its market share from imports has remained well under 1%. Sumitomo’s inability to gain a significant share of the United States market was a principal reason behind Sumitomo’s decision to build a facility in this country for research, development and production of optical waveguide fiber and cable. Sumito-mo began construction of its United States" }, { "docid": "16988357", "title": "", "text": "feature of holding the subsequent temperatures below that first crystallization step. Thus, without creating any additional limitations, as the examiner conceded by granting the reexamination certificate without any changes in claim language, the claims sufficiently distinguished Jaeger. Moreover, the examiner’s statement might well render the claim inoperable. This court seeks to interpret claims to preserve, rather than defeat, their validity. ACS Hosp. Sys., Inc. v. Montefiore Hosp., 732 F.2d 1572, 1577, 221 USPQ 929, 932 (Fed.Cir.1984). Thus, we affirm the trial judge’s decision to exclude the limitation concerning “further crystallization” not found in claim language. Judgment as a Matter of Law Having sustained the trial court’s claim interpretation, this court next examines whether any jury could reasonably have found that Goodyear’s accused CSS lines 1 and 2 literally infringe the ’112 patent, as properly construed. See Exxon Chem. Patents, Inc. v. Lubrizol Corp., 64 F.3d 1553, 1555, 35 USPQ2d 1801, 1802 (Fed.Cir.1995). Under the trial court’s claim interpretation, the record contained sufficient evidence for a jury to find infringement by CSS lines 1 and 2. The record contains evidence that CSS lines 1 and 2 operate within the temperature ranges in the claim. Accordingly, this court affirms the trial court’s denial of the defendant’s motion for judgment as a matter of law of non-infringement for CSS lines 1 and 2. Antitrust Claims Goodyear alleged that Eastman attempted to monopolize the container-grade PET market in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2 (1994), and violated Section 7 of the Clayton Act, id. § 18, by acquiring the exclusive right to enforce the ’112 patent. The district court judge granted summary judgment in favor of Eastman on both of these counterclaims. In determining whether the district court correctly granted summary judgment, this court applies the law of the regional circuit for this district court. See Cygnus Therapeutics Sys. v. ALZA Corp., 92 F.3d 1153, 1161, 39 USPQ2d 1666, 1672 (Fed.Cir.1996); Loctite Corp. v. Ultraseal Ltd., 781 F.2d 861, 875, 228 USPQ 90, 99 (Fed.Cir.1985) (“We must approach a federal antitrust claim as would a court of appeals" }, { "docid": "6423881", "title": "", "text": "of Precor’s correspondence is particularly indicative of the reasonableness of Plaintiffs apprehension of suit since it is specifically directed toward enforcement proceedings in Taiwan, the location of Plaintiffs alleged manufacturer of the potentially infringing device. Second, the party sending the letters and to whom they were mailed further support a finding that the totality of the circumstances indicates that Plaintiff had a reasonable apprehension of suit at the time it commenced the declaratory action. First, the correspondence at issue was sent by Precor’s legal counsel, Christensen O’Conner Johnson & Kindness, L.L.C., on its stationary which clearly indicates that the law firm specializes in “patent, trademark and other intellectual property matters.” (Compl.Ex. A, B.) Furthermore, Precor’s legal counsel additionally sent correspondence to the purported manufacturer of Plaintiffs device. (Compl.Ex. B.) While these factors alone do not result in a reasonable apprehension of suit, accompanied by the content of letters as discussed above, these letters do support the conclusion that Plaintiff had a reasonable apprehension of suit based on the totality of the circumstances presented. Precor asserts, relying on Drew Chemical Co. v. Hercules Inc., 407 F.2d 360, 362 (2d Cir.1969), that its letters are merely banter between the parties amounting to a business argument rather than a threat to file suit. (Mot. at 4.) Moreover, Precor contends that under Phillips Plastics, correspondence alone between the patentee and declaratory plaintiff is insufficient to\" create a reasonable apprehension of suit in the declaratory plaintiff. (Id.) However, both Drew Chemical Co. and Phillips Plastics are distinguishable from the present case. In Drew Chemical Co., the court found that the patentee’s oral hints of infringement were insufficient to create a reasonable apprehension of suit in the declaratory plaintiff. Drew Chemical Co., 407 F.2d at 362. There, the court recognized that the communications between the two parties were made during the course of license negotiations. Id. From these facts, the court characterized the patentee’s comments as mere banter between parties. Id. In the present case, Precor’s correspondence was not communicated during the course of any negotiations between Precor and Plaintiff. Rather, the correspondence was sent as" } ]

[ { "docid": "22253567", "title": "", "text": "subsequent to the filing of the complaint may render his case moot, such a release does not affect the custody question. Moreover, the term “custody” is not limited solely to physical confinement. See, e.g., Spring v. Caldwell, 692 F.2d 994, 996 (5th Cir.1982); Duvallon v. Florida, 691 F.2d 483, 484 (11th Cir.1982); cert. denied, 460 U.S. 1073, 103 5. Ct. 1533, 75 L.Ed.2d 953 (1983); United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 423 (3d Cir.1975). For instance, persons on parole, probation or bail may be in custody for purposes of §§ 2241 and 2254. See, e.g., Duvallon, 691 F.2d at 485; Hopkins, 517 F.2d at 423-24. The record reflects that the plaintiff filed his complaint on July 16,1982. At this time, Sevier was subject (and remains subject) to the 1977 consent order. This civil judgment requiring him to pay child support does not, however, constitute custody. If a fine imposed in a criminal case does not create custody for purposes of §§ 2241 and 2254, see, e.g., Spring, 692 F.2d at 996-97 (cases collected), then neither does a civil money judgment. The record further discloses that Sevier’s incarceration resulting from October 1981 civil contempt hearing had ended well before July 16, 1982. Nor was the plaintiff subject to parole, probation, bail or any other indicia of custody pursuant to the October 1981 civil contempt order when the complaint in this case was filed. Since the plaintiff was in custody of neither of the juvenile court orders that he seeks to have vacated as of July 16, 1982, see Ward v. Huron County Circuit Judge Knoblock, 738 F.2d 134 at 137-138 (6th Cir.1984), this court lacks jurisdiction to grant habeas corpus relief. IV. We next consider the plaintiff’s claim for injunctive and declaratory relief. The Supreme Court has recently decided that the doctrine of judicial immunity does not protect state judicial officers such as Turner, Person and Justice from suits for injunctive relief. See Pulliam v. Allen, — U.S. —, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984). Since the defense of judicial immunity is unavailable to the defendants" } ]

[ { "docid": "1019151", "title": "", "text": "of Bedford County, has not filed an answer to the complaint and is thus technically in default under Rule 55, Fed.R. Civ.Proc. The plaintiff has filed a response to the defendants’ motion to dismiss, and the matter is now ready for disposition. Within the last decade, the concept of custody for purposes of habeas corpus has, as the plaintiff argues, undergone significant expansion. The 1963 case of Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285, marked the beginning of this transition, by holding that a petition did not become moot when, during the pendency of litigation, the petitioner was released from prison on parole. This case did not rest, as it might have, upon the conclusion that once federal jurisdiction attaches, it is not defeated by subsequent release from prison, so long as there is some need for relief. Instead, Jones rested upon the conclusion that the parole in question “imposes conditions which significantly confine and restrain his [the parolee’s] freedom” and that “this is enough to keep him in the ‘custody’ of the members of the Virginia Parole Board within the meaning of the habeas corpus statute.” 371 U.S. at 243, 83 S.Ct. at 377. The petitioner was, therefore, in custody at the time the writ might actually issue as well as at the time of the filing of his petition. As lower court decisions have subsequently held, a party who is on parole or probation may commence a petition for a writ of habeas corpus when not in prison at the time of commencement. E. g., United States ex rel. B. v. Shelly, 430 F.2d 215 (2d Cir. 1970); United States ex rel. Rybarik v. Maroney, 406 F.2d 1055 (3d Cir. 1969). More recently, the concept of custody has been expanded even further. In Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973), the Supreme Court held that the restraints placed upon a criminal defendant when released upon his own recognizance following conviction • and sentencing are sufficient to constitute custody. While recognizing that a parolee is generally subject" }, { "docid": "3313545", "title": "", "text": "of confinement. See also Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir.2000) (adhering to circuit precedent that § 2254 is the correct vehicle for contesting loss of good time credit in prison disciplinary proceedings). The question before us is whether the fact that Mr. Cochran’s loss of good time credits was suspended dictates a different course than the one set forth in Preiser. In analyzing this question, we must focus not on Mr. Cochran’s underlying sentence to confinement, but on the sentence of the disciplinary board whose action in imposing a suspended loss of good time credits created the very real possibility that Mr. Cochran would spend more time behind bars than would have occurred in the absence of the disciplinary matter. As far as the record in this case reflects, at the time Mr. Cochran filed his habeas petition, the prison disciplinary board could have revoked the suspended sentence of loss of good time credit and imposed a longer confinement than would have applied absent the disciplinary proceeding. Therefore, we believe that this distinct possibility of the loss of good time credits requires that his claim be cognizable in a habeas action rather than in an action under § 1983. Our decision on this point is grounded firmly in the rationale of the Supreme Court’s precedents in this area. It has long been established that “custody” does not require physical confinement. For instance, in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), the Supreme Court held that a person free on parole was “in custody” of the parole board for purposes of habeas corpus. His parole “involve[d] significant restraints on petitioner’s liberty.” Id. at 242, 83 S.Ct. 373; see also Hensley v. Mun. Court, 411 U.S. 345, 351-52, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (ruling that individuals released on bail or on their own recognizance pending trial or pending appeal are “in custody”); Tinder v. Paula, 725 F.2d 801, 803 (1st Cir.1984) (noting that probationers and parolees have been found to meet the “in custody” requirement); United States ex rel. Wojtycha v." }, { "docid": "14844283", "title": "", "text": "satisfy the custody requirement. Thus, in Jones v. Cunningham, the Supreme Court concluded that a habeas petitioner who had been placed on parole was still “in custody” under an unexpired sentence because of the restraints and conditions set forth in the parole order. 371 U.S. 236, 241-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). The Court reasoned that despite his release from prison, the petitioner was still required to report regularly to a parole officer, remain in a particular community, residence, and job, and refrain from certain activities. Id. at 242, 83 S.Ct. 373. Similarly, suspended or stayed sentences may satisfy the custody requirement; see, e.g., McVeigh v. Smith, 872 F.2d 725, 727 (6th Cir.1989); Sammons v. Rodgers, 785 F.2d 1343, 1345 (5th Cir.1986) (per curiam); as may commitment to a mental institution, and incarceration as the result of a civil contempt order. See Duncan v. Walker, 533 U.S. 167, 176, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). In contrast, “[t]he payment of restitution or a fine, absent more, is not the sort of significant restraint on liberty contemplated in the custody requirement of the federal habeas statutes.” Erlandson, 528 F.3d at 788 (internal quotation marks and citation omitted). B. A prisoner serving consecutive sentences is “in custody” under any one of them under § 2254. When, as here, a habeas petitioner has multiple convictions and sentences, the Supreme Court has developed several principles to determine whether he or she satisfies the custody requirement. “The [Court’s] traditional view was that a prisoner could attack only the conviction for which he was in custody and only if success on the habeas claim would lead to immediate release from that custody.” Foster v. Booher, 296 F.3d 947, 949 (10th Cir.2002). Thus, in McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934), the Court ruled that a habeas petitioner was not in custody on a sentence that was imposed consecutively to his current sentence because he had not yet begun to serve it. With regard to consecutive sentences, the Court has abandoned this strict definition of custody. First, in" }, { "docid": "18059476", "title": "", "text": "26,1996. (See generally 9/26/96 Oral Arg. Tr.) ANALYSIS I. PRELIMINARY PROCEDURAL ISSUES A. A Writ of Habeas Corpus is the Proper Remedy for a Parolee The writ of habeas corpus is available to any individual “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(e)(3) (emphasis added); see also 28 U.S.C. §§ 2254(a), 2255. While a petition filed after the expiration of a sentence does not meet the “in custody” requirement, see Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989), actual physical imprisonment is not required, so long as a petitioner suffers from substantial restraints not shared by the general public. See, e.g., Maleng v. Cook, 490 U.S. at 491, 109 S.Ct. at 1925; Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 1574-75, 36 L.Ed.2d 294 (1973). Upon his release from prison in 1994, LoFranco was subject to a fourteen-year parole term. It is black letter law that a parolee is still “in custody” within the meaning of the habeas statute. E.g., Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963) (parole meets the “in custody” requirement); Maleng v. Cook, 490 U.S. at 491, 109 S.Ct. at 1925 (citing Jones for proposition that parolee is in custody); Scanio v. United States, 37 F.3d 858, 860 (2d Cir.1994) (supervised release meets “in custody” requirement); Billiteri v. United States Bd. of Parole, 541 F.2d 938, 947 (2d Cir.1976) (habeas corpus petition is the proper relief to be sought by a parolee); Schwartz v. United States, 888 F.Supp. 24, 26 (S.D.N.Y.1995) (Sprizzo, J.) (same). Therefore, a writ of habeas corpus is the appropriate remedy to be sought in this action. B. LoFranco’s Current Habeas Petition is Not Barred By His Previous Parole Petition The Government argues that the Court should exercise its discretion to not entertain the present habeas petition pursuant to 28 U.S.C. § 2244, which provides that: No circuit or district judge shall be required to entertain an application for a writ of habeas corpus ..." }, { "docid": "12041206", "title": "", "text": "court. He argues that, once he was initially sentenced under the YCA, later adult sentencing was improper, and the errors in the Oklahoma court proceedings led directly to his present incarceration. Had the Oklahoma court not revoked appellant’s YCA probationary status and substituted an adult sentence — resulting in an extension of the probationary period — the California court would no longer have had supervisory power over the appellant at the time probation was revoked and the present imprisonment could not have been ordered. Because “the California court had absolutely no connection with the proceedings presently being attacked,” Record, vol. 2, at 12-13, the Oklahoma court asserted jurisdiction over the motion to vacate. “A motion to vacate a sentence under § 2255 . . . will not lie unless the movant is in custody under such sentence.” Blair v. United States, 349 F.2d 405, 405 (10th Cir. 1965). For jurisdiction to lie in the Oklahoma district court, the appellant must be both “in custody” and under a “sentence” of that court. “Custody” is not limited to physical confinement; it exists whenever conditions have been imposed “which significantly confine and restrain [the movant’s] freedom.” Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963). For purposes of the habeas corpus statutes, probation, like parole, constitutes “custody.” See Hahn v. Burke, 430 F.2d 100, 102 (7th Cir. 1970). The period of probation imposed by the Oklahoma district court has passed, but the appellant’s present incarceration is based on, and his motion directly challenges, the allegedly erroneous sentencing procedures of that court. Since appellant’s freedom has unquestionably been restrained by actions of the Oklahoma court, the “custody” requirement is satisfied for jurisdictional purposes. The second requirement for jurisdiction in the Oklahoma court is that the order of probation must constitute a “sentence.” In other contexts, this court has considered probation to be a category conceptually distinct from a sentence. See, e. g., Bartlett v. United States, 166 F.2d 928, 932 (10th Cir. 1948). However, we agree with the Seventh Circuit that, for purposes of 28 U.S.C. § 2255" }, { "docid": "10798275", "title": "", "text": "requires a petitioner to be “in custody pursuant to the judgment of a State court ... in violation of the Constitution or laws or treaties of the United States.” “The custody requirement is jurisdictional.” Mays v. Dinwiddie, 580 F.3d 1136, 1139 (10th Cir.2009). We review de novo the legal question “as to the proper interpretation of the ‘in custody’ requirement of 28 U.S.C. § 2254.” Id. at 1138. We liberally construe Mr. Calhoun’s pro se filings. See Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir.2003). A petitioner must satisfy the custody requirement at the time the habeas petition is filed. Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). He need not, however, show actual, physical custody to obtain relief. Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam). Habeas corpus is available for prisoners released on parole or personal recognizance. Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (parole); Hensley v. Municipal Court, 411 U.S. 345, 346, 353, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (personal recognizance). It is also available to prisoners serving consecutive sentences, Garlotte v. Fordice, 515 U.S. 39, 46-47, 115 S.Ct. 1948, 132 L.Ed.2d 36 (1995), as well as to aliens seeking entry into the United States, Jones, 371 U.S. at 240 & n. 9, 83 S.Ct. 373, and persons “questioning the legality of an induction or enlistment into the military service,” id. at 240 & n. 11, 83 S.Ct. 373. Commitment to a mental institution or incarceration as the result of a civil contempt order may also meet the custody requirement. Duncan v. Walker, 533 U.S. 167, 176, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). The writ is available in situations where a state-court criminal conviction has subjected the petitioner to “severe restraints on [his or her] individual liberty.” Hensley, 411 U.S. at 351, 93 S.Ct. 1571. A restraint is severe when it is “not shared by the public generally.” Jones, 371 U.S. at 240, 83 S.Ct. 373. But the remedy of a" }, { "docid": "22421738", "title": "", "text": "[the ARD program] may be such as may be imposed with respect to probation after conviction of a crime,” the conditions of Petit’s ARD program did not approach the normal conditions of parole. Cf. Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (holding individual confined by parole order to particular community, house, and job at the sufferance of his parole officer, who is under constant threat of reincarcer-ation, qualified as “in custody” for habeas purposes). I therefore conclude that, even in the unlikely event that Petit was still in ARD at the time that he filed the present suit, his ARD program was not sufficiently burdensome to render him “in custody” for habeas purposes. Accordingly, the favorable termination rule does not apply to his claims and the dismissal of his claim on that basis was error. . I join in the majority's opinion with respect to Gilíes’ challenge of the Indiana University of Pennsylvania (IUP) permit policy. I merely wish to add that Gilíes has no standing to bring his challenge because the permit policy is a reasonable, content-neutral policy that regulates commercial solicitation only, and therefore Gilíes raises no issue with respect to whether the permit policy \"may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). . Speech that results in violence is not necessarily inherently provocative, but in the absence of violence or any sign of impending violence it is especially difficult to show that certain words 'inherently' arouse listeners to violence. . Because Petit's claims are not barred under Heck, the District Court should have addressed the merits of his First Amendment claim and engaged in a qualified immunity analysis with respect to his arrest. As the majority points out, the District Court was wrong to suggest that Petit's claim would fail merely because he did not literally speak; videotaping can constitute protected expression. See Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.2000) (“The First Amendment protects the" }, { "docid": "18059477", "title": "", "text": "meaning of the habeas statute. E.g., Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963) (parole meets the “in custody” requirement); Maleng v. Cook, 490 U.S. at 491, 109 S.Ct. at 1925 (citing Jones for proposition that parolee is in custody); Scanio v. United States, 37 F.3d 858, 860 (2d Cir.1994) (supervised release meets “in custody” requirement); Billiteri v. United States Bd. of Parole, 541 F.2d 938, 947 (2d Cir.1976) (habeas corpus petition is the proper relief to be sought by a parolee); Schwartz v. United States, 888 F.Supp. 24, 26 (S.D.N.Y.1995) (Sprizzo, J.) (same). Therefore, a writ of habeas corpus is the appropriate remedy to be sought in this action. B. LoFranco’s Current Habeas Petition is Not Barred By His Previous Parole Petition The Government argues that the Court should exercise its discretion to not entertain the present habeas petition pursuant to 28 U.S.C. § 2244, which provides that: No circuit or district judge shall be required to entertain an application for a writ of habeas corpus ... if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus and the petition presents no new ground not heretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry. 28 U.S.C. § 2244(a). The Government’s argument is unpersuasive. When presented with successive habeas petitions, the “judge is permitted, not compelled, to decline to entertain such an application, and then only if he ‘is satisfied that the ends of justice will not be served’ by inquiring into the merits.” Sanders v. United States, 373 U.S. 1, 12, 83 S.Ct. 1068, 1075, 10 L.Ed.2d 148 (1963) (emphasis added). If, as in the instant case, doubts arise as to whether the grounds of successive habeas petitions are different or the same, the dispute should be resolved in favor of the petitioner. See id., 373 U.S. at 16, 83 S.Ct. at 1077. LoFraneo’s previous habeas petition" }, { "docid": "23015640", "title": "", "text": "district court, if it becomes moot on appeal, we must dismiss the case unless “the relief sought would, if granted, make a difference to the legal interests of the parties.” Id. Because Rosales is still “in custody” for the purposes of 28 U.S.C. § 2241 and because the relief he seeks, if granted, would make a difference to his legal interests, we conclude that his appeal is not moot. The government argues that “if a prisoner is released from custody during the pendency of his case, his habeas petition becomes moot.” Gov’t Supp. Br. re Rosales at 19. In Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), however, the Supreme Court held that a paroled prisoner was in the custody of his state parole board for the purposes of 28 U.S.C. § 2241. “While petitioner’s parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in the ‘custody’ of the members of the Virginia Parole Board within the meaning of the habeas corpus statute.... ” Jones, 371 U.S. at 243, 83 S.Ct. 373; see also DePompei v. Ohio Adult Parole Auth., 999 F.2d 138, 140 (6th Cir.1993). Although Rosales’s parole was not based on a criminal conviction, it imposes similarly restrictive conditions. See Rosales Supp. J.A. at 4-5 (Conditions of Parole). Therefore, we conclude that even though he has been paroled into the United States, Rosales is still in the custody of the INS for the purposes of his habeas petition. Our inquiry into whether Rosales’s claim is moot cannot end, however, with a determination of custody. In Spencer v. Kemna, the Supreme Court determined that a petitioner’s release did not by itself moot his habeas petition, but the Court then explained that “[t]he more substantial question ... is whether petitioner’s subsequent release caused the petition to be moot because it no longer presented a case or controversy under Article III, § 2, of the Constitution.” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Rosales petitioned" }, { "docid": "2020439", "title": "", "text": "strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). Furthermore, “ ‘[a]n attorney’s decisions on what to investigate are accorded heavy deference.’ ” Whitmore v. Lockhart, 8 F.3d 614, 618 (8th Cir.1993) (quoting Russell v. Jones, 886 F.2d 149, 152 (8th Cir.1989)). We believe the record reveals that Jones’s trial counsel had sufficient strategic reasons for not calling each of the four persons as witnesses and thus did not represent Jones in a deficient manner. See id. at 618-22 (finding no deficient performance where counsel investigated reasonably). Because Jones has failed to prove that his trial counsel was ineffective, the district court did not err when it denied relief on this claim. V. We affirm the judgment of the district court, which denied the petition for a writ of habeas corpus. . The Honorable George F. Gunn, Jr., United States District Judge for the Eastern District of Missouri, upon the report and recommendation of the Honorable Catherine D. Perry, United States Magistrate Judge for the Eastern District of Missouri. . It appears that Jones was on parole when he filed his habeas petition. (See R. at 9.) Parole status does not deprive a federal court of jurisdiction over a habeas petition, however, because a parolee is still \"in custody.” See 28 U.S.C. § 2254(a); Jones v. Cunningham, 371 U.S. 236, 241-43, 83 S.Ct. 373, 376-77, 9 L.Ed.2d 285 (1963); Piercy v. Black, 801 F.2d 1075, 1077 n. 2 (8th Cir.1986). It further appears that Jones may have discharged his sentence since he filed the habeas petition. (See Resp’ts' Ex. A at 2.) A federal court retains jurisdiction over a habeas petition, however, so long as jurisdiction existed at the time the petition was filed. See Carafas v. LaVallee, 391 U.S. 234, 238-39, 88 S.Ct. 1556, 1559-60, 20 L.Ed.2d 554 (1968); Hanson v. Passer, 13 F.3d 275, 277 n. 1 (8th Cir.1994); see also Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989) (\"We have never held," }, { "docid": "12201485", "title": "", "text": "be vacated. Even in section 2255 cases the “in custody” requirement has been consciously relaxed to reduce its impact upon prisoners having a just claim to relief. The Supreme Court decided in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), that a parolee was “in custody” for jurisdictional purposes under section 2255. Where the conviction sought to be vacated is not being served but diminishes the prisoner’s current eligibility for parole, we held that he is “in custody” within the meaning of section 2241. Martin v. Com. of Virginia, 349 F.2d 781 (4th Cir. 1965). In so doing, we recognized, in the words of Mr. Justice Black, that habeas corpus “is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty.” In light of these developments it would be anomalous at this date to read into coram nobis a stringent requirement that the petitioner show a “present adverse effect.” Mathis has in fact demonstrated a sufficient “present adverse effect” to entitle him to relief. The federal detainer placed with Florida officials precludes his immediate release upon completion of his state sentence. The consequences of denial of coram nobis relief would be that after the state sentence has been served he would be taken into federal custody, first to await the outcome of a probation revocation hearing, which almost certainly will result in his parole being revoked, and then to begin service of his unexpired federal sentence. Only thereafter would he be able to attack the conviction under section 2255. No matter how expeditiously these proceedings were conducted, Mathis would have to spend additional time in prison under a concededly unconstitutional conviction. Fairness and sound judicial administration require that the unconstitutional federal sentence be set aside before the expiration of the state sentence. Without limiting our holding to cases where illegality of the sentence is conceded, the concession here serves to highlight the appropriateness of the sought-for" }, { "docid": "14162936", "title": "", "text": "indicated his agreement with Justice Souter regarding the ability of the petitioner to bring a § 1983 action, it appears that Justice Souter’s reading of Heck is approved by a majority of the Court. The Court is persuaded by Justice Souter’s reasoning in Spencer and Heck. It is unfair to require a person who is legally precluded from challenging his or her conviction or sentence on habeas grounds to demonstrate that the conviction or sentence had been overturned or invalidated. The Court finds, therefore, that Heck's requirement that a § 1983 plaintiff must prove that his or her conviction or sentence has been reversed or invalidated does not apply to a § 1983 plaintiff who is no longer in custody and who is unable as a matter of law to bring a habeas petition to challenge his or her conviction or sentence. 2. Application of Spencer to Mr. Zupan Mr. Zupan asserts that Heck does not bar his § 1983 claims based on the revocation of his parole because he is no longer in custody and cannot petition for habeas corpus relief from the confinement. The Court agrees for two reasons. First, because Mr. Zupan is no longer “in custody,” he can no longer bring a habeas corpus petition challenging his parole revocation. See 28 U.S.C. § 2254. For the reasons discussed above, Mr. Zupan may therefore bring his § 1983 action concerning the revocation of his parole without satisfying the favorable-termination requirement of Heck. Second, Mr. Zupan’s parole revocation resulted in a “term too short to permit even expeditious litigation without continuances before expiration of the sentence.” Spencer, — U.S. at—, 118 S.Ct. 978, 140 L.Ed.2d 43, n.* (Souter, J., concurring). After Mr. Zupan’s parole was revoked, he was incarcerated for only six weeks, from December 3, 1993 to January 15, 1994. From January 15, 1994, when he was re-paroled, until December 20, 1996, when he was discharged from parole, he was still “in custody” for the purposes of § 2254, but only to challenge actions that led to his underlying conviction and sentence. Once he was released from" }, { "docid": "3313546", "title": "", "text": "distinct possibility of the loss of good time credits requires that his claim be cognizable in a habeas action rather than in an action under § 1983. Our decision on this point is grounded firmly in the rationale of the Supreme Court’s precedents in this area. It has long been established that “custody” does not require physical confinement. For instance, in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), the Supreme Court held that a person free on parole was “in custody” of the parole board for purposes of habeas corpus. His parole “involve[d] significant restraints on petitioner’s liberty.” Id. at 242, 83 S.Ct. 373; see also Hensley v. Mun. Court, 411 U.S. 345, 351-52, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (ruling that individuals released on bail or on their own recognizance pending trial or pending appeal are “in custody”); Tinder v. Paula, 725 F.2d 801, 803 (1st Cir.1984) (noting that probationers and parolees have been found to meet the “in custody” requirement); United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 423-24 (3d Cir.1975) (holding that a prisoner serving a suspended sentence, placed on probation and fined met the custody requirement); 17A Charles Alan Wright et al., Federal Practice and Procedure § 4262 (2d ed. 1988 & Supp.2004). We believe that the action of the prison disciplinary board with respect to Mr. Cochran’s good time credits is sufficiently analogous to the situations presented in these cases that, by a parity of reasoning, his claim should be evaluated by the same process — habeas corpus. Therefore, we hold that Mr. Cochran presented a cognizable claim under § 2254. See Sammons v. Rodgers, 785 F.2d 1343, 1345 (5th Cir.1986) (holding that court had jurisdiction to review petitioner’s conviction when his sentence had been suspended, and that suspension had not yet expired, because “[n]othing in the record indicate[d] that the suspended sentence ... d[id] not carry with it possible revocation of suspension or other adverse action”). 2. Although Mr. Cochran appropriately filed a habeas corpus petition, the suspended sanction was never imposed against Mr. Cochran," }, { "docid": "14844282", "title": "", "text": "examine Mr. Mays’s arguments de novo. See Erlandson v. Northglenn Mun. Ct., 528 F.3d 785, 788 (10th Cir.2008). Like the district court, we are not persuaded by Mr. Mays’s arguments. A. Section 2254(a)’s custody requirement encompasses restraints not shared by the public generally that significantly restrain the petitioner’s freedom. Under § 2254(a), federal courts may grant habeas relief only if a state prisoner is “m custody in violation of the Constitution or laws or treaties of the United States.” (emphasis added). The custody requirement is jurisdictional. See Erlandson, 528 F.3d at 788. It encompasses not only individuals subject to immediate physical imprisonment, but also those subject to restraints not shared by the public generally that significantly confine and restrain freedom. Lehman v. Lycoming County Children’s Servs. Agency, 458 U.S. 502, 510, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). The petitioner must satisfy the custody requirement at the time that the habeas action is filed. Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). A prisoner need not be incarcerated to satisfy the custody requirement. Thus, in Jones v. Cunningham, the Supreme Court concluded that a habeas petitioner who had been placed on parole was still “in custody” under an unexpired sentence because of the restraints and conditions set forth in the parole order. 371 U.S. 236, 241-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). The Court reasoned that despite his release from prison, the petitioner was still required to report regularly to a parole officer, remain in a particular community, residence, and job, and refrain from certain activities. Id. at 242, 83 S.Ct. 373. Similarly, suspended or stayed sentences may satisfy the custody requirement; see, e.g., McVeigh v. Smith, 872 F.2d 725, 727 (6th Cir.1989); Sammons v. Rodgers, 785 F.2d 1343, 1345 (5th Cir.1986) (per curiam); as may commitment to a mental institution, and incarceration as the result of a civil contempt order. See Duncan v. Walker, 533 U.S. 167, 176, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). In contrast, “[t]he payment of restitution or a fine, absent more, is not the sort of significant" }, { "docid": "7935094", "title": "", "text": "on November 26, 1993. The record indicates that Scanio was released from incarceration on November 27, 1991. His two-year term of supervised release therefore commenced on November 27, 1991 and expired at midnight on November 26, 1993. Thus, we next consider whether Scanio met the requirements for filing a ha-beas corpus petition. Title 28 U.S.C. § 2255 states in pertinent part: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, ... may move the court which imposed the sentence to vacate, set aside or correct the sentence, (emphasis added). In order to invoke habeas corpus review by a federal court, the petitioner must satisfy the jurisdictional “in custody” requirement of 28 U.S.C. § 2255. See United States v. Brilliant, 274 F.2d 618, 620 (2d Cir.) (“A district court is without jurisdiction to entertain a writ of habeas corpus or a § 2255 motion if the relator or movant is not in custody.”), cert. denied, 363 U.S. 806, 80 S.Ct. 1242, 4 L.Ed.2d 1149 (1960). Indeed, the Supreme Court stated in Carafas v. LaVallee that “[t]he federal habeas corpus statute requires that the applicant must be ‘in custody’ when the application for habeas corpus is filed.” 391 U.S. 234, 238, 88 S.Ct. 1556, 1560, 20 L.Ed.2d 554 (1968) (emphasis added). Although physical confinement is not necessary in order for a prisoner to challenge his sentence, see Jones v. Cunningham, 371 U.S. 236, 241-43, 83 S.Ct. 373, 376-77, 9 L.Ed.2d 285 (1963) (holding prisoner on parole remains “in custody”), the Supreme Court has never gone so far as to hold that “a habeas petitioner may be ‘in custody under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed,” Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989) (emphasis in original). The rationale in such a case is that the “habeas petitioner suffers no present restraint from" }, { "docid": "14162937", "title": "", "text": "and cannot petition for habeas corpus relief from the confinement. The Court agrees for two reasons. First, because Mr. Zupan is no longer “in custody,” he can no longer bring a habeas corpus petition challenging his parole revocation. See 28 U.S.C. § 2254. For the reasons discussed above, Mr. Zupan may therefore bring his § 1983 action concerning the revocation of his parole without satisfying the favorable-termination requirement of Heck. Second, Mr. Zupan’s parole revocation resulted in a “term too short to permit even expeditious litigation without continuances before expiration of the sentence.” Spencer, — U.S. at—, 118 S.Ct. 978, 140 L.Ed.2d 43, n.* (Souter, J., concurring). After Mr. Zupan’s parole was revoked, he was incarcerated for only six weeks, from December 3, 1993 to January 15, 1994. From January 15, 1994, when he was re-paroled, until December 20, 1996, when he was discharged from parole, he was still “in custody” for the purposes of § 2254, but only to challenge actions that led to his underlying conviction and sentence. Once he was released from his reineareeration on January 15, 1994, however, the incarceration that resulted from his parole revocation had ended. He could no longer file a habeas corpus petition challenging the actions that led to the parole revocation, that is, the allegedly unlawful search and arrest. See Spencer, — U.S. at-, 118 S.Ct. 978, 140 L.Ed.2d 43; Steinberg v. Police Court of Albany, N. Y., 610 F.2d 449, 453 (6th Cir.1979) (to maintain a habeas action, petitioner must be “in custody” and that custody must be the result of respondent’s action from which petitioner seeks relief); Brown v. Wainwright, 447 F.2d 980, 980 (5th Cir.1971) (court lacks jurisdiction when inmate petitioner is not in custody under the sentence he is attacking). Mr. Zupan, therefore, had only six weeks in which to file a habeas corpus petition challenging Defendants’ actions that led to the revocation of his parole. As indicated above, Heck should not be read to bar a claim by a § 1983 plaintiff like Mr. Zupan who has completed a short term of imprisonment on a parole" }, { "docid": "14221629", "title": "", "text": "Hart to sign the journal entry so that the appellant could appeal his conviction. The district court’s sua sponte dismissal of the appellant’s petition gave rise to this appeal. Federal courts have no authority to issue a writ of mandamus to a state judge. Van Sickle v. Holloway, 791 F.2d 1431, 1436 n. 5 (10th Cir.1986). However, because we construe pro se complaints liberally, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972); Herrera v. Harkins, 949 F.2d 1096, 1097 (10th Cir.1991), our inquiry does not end there. Under the facts alleged by the appellant, one could characterize the complaint as either a request for habeas corpus relief or an action arising under 42 U.S.C. § 1983. Under either characterization, the appellant presents an arguable claim for relief. In regard to habeas corpus relief, the appellant arguably has a claim under 28 U.S.C. § 2254. The appellant alleges that he was sentenced to probation. Probationary status is sufficiently “in custody” pursuant to section 2254 to permit habeas relief. See Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963) (paroled prisoner still in custody for habeas purposes); Benson v. California, 328 F.2d 159, 162 (9th Cir.1964) (individual on probation still in custody for habeas purposes). Moreover, even if the probationary period has expired by now, a petition for habeas relief is not moot, so long as the petition was filed during the probationary period and the conviction will have adverse collateral consequences. See Carafas v. LaVallee, 391 U.S. 234, 237-40, 88 S.Ct. 1556, 1559-1561, 20 L.Ed.2d 554 (1968). The record on appeal does not reveal whether these conditions were met; thus, on remand, the district court will have to determine whether habeas relief may be available. Although the court obviously cannot discharge the appellant from custody if he is not in custody, the court may grant other relief that it deems equitable. Id. at 239, 88 S.Ct. at 1560. We may also construe a pro se petition for a writ of mandamus as an action for injunctive or declaratory" }, { "docid": "22421737", "title": "", "text": "that the ARD program never placed Petit “in custody” for habeas purposes. ARD is a pre-trial diversionary program, the purpose of which “is to attempt to rehabilitate the defendant without resort to a trial and ensuing conviction.” Commonwealth v. Feagley, 371 Pa.Super. 593, 538 A.2d 895, 897 (1988) (refusing to hear appeal from order terminating participation in ARD). “[AJccep-tance of ARD does not constitute a conviction” and “is not the equivalent of a conviction.” Id. at 897. Although we do not know the precise conditions imposed upon Petit, they do not appear to have required Petit to report anywhere in Pennsylvania since his stated reason for entering ARD was to enable his return to Kentucky as quickly as possible for work. Cf. Dow v. Cir. Ct. of First Cir. Through Huddy, 995 F.2d 922, 923 (9th Cir.1993) (holding alcohol rehabilitation program that required defendant’s physical presence at a particular place significantly restrained his liberty and could be characterized as custody for habeas purposes). While Pennsylvania Rule of Criminal Procedure 316 provides that “[t]he condition of [the ARD program] may be such as may be imposed with respect to probation after conviction of a crime,” the conditions of Petit’s ARD program did not approach the normal conditions of parole. Cf. Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (holding individual confined by parole order to particular community, house, and job at the sufferance of his parole officer, who is under constant threat of reincarcer-ation, qualified as “in custody” for habeas purposes). I therefore conclude that, even in the unlikely event that Petit was still in ARD at the time that he filed the present suit, his ARD program was not sufficiently burdensome to render him “in custody” for habeas purposes. Accordingly, the favorable termination rule does not apply to his claims and the dismissal of his claim on that basis was error. . I join in the majority's opinion with respect to Gilíes’ challenge of the Indiana University of Pennsylvania (IUP) permit policy. I merely wish to add that Gilíes has no standing to bring" }, { "docid": "10798274", "title": "", "text": "was suspended on the condition that he successfully complete two years of sex-offense-specific probation. His probation was terminated on February 2, 2007, and in September 2012, he filed the underlying habe-as petition asserting nine claims. Because he was convicted of a sex offense, Mr. Calhoun is required to register pursuant to Colorado’s sex-offender statutes. See Colo.Rev.Stat. § 16-22-103. He must annually appear in person at the local sheriffs office to be photographed and fingerprinted. Id. § 16-22-108(6). In addition, he must provide his address, place of employment, vehicle information, and email and other internet identifiers. Id. § 16-22-109(1). He must also reregis-ter within five days of any change to that information, id. § 16-22-108(3), and the sheriff must verify his residential address at least annually, id. § 16-22-109(3.5)(a). He may request release from the duty to register as a sex offender ten years after the end of his probationary period. See id. § 16-22-113(l)(b). Mr. Calhoun asserts that these registration requirements sufficiently restrict his freedom to meet § 2254’s custody requirement. II. DISCUSSION Section 2254(a) requires a petitioner to be “in custody pursuant to the judgment of a State court ... in violation of the Constitution or laws or treaties of the United States.” “The custody requirement is jurisdictional.” Mays v. Dinwiddie, 580 F.3d 1136, 1139 (10th Cir.2009). We review de novo the legal question “as to the proper interpretation of the ‘in custody’ requirement of 28 U.S.C. § 2254.” Id. at 1138. We liberally construe Mr. Calhoun’s pro se filings. See Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir.2003). A petitioner must satisfy the custody requirement at the time the habeas petition is filed. Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). He need not, however, show actual, physical custody to obtain relief. Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam). Habeas corpus is available for prisoners released on parole or personal recognizance. Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (parole); Hensley v. Municipal Court," }, { "docid": "2020440", "title": "", "text": "D. Perry, United States Magistrate Judge for the Eastern District of Missouri. . It appears that Jones was on parole when he filed his habeas petition. (See R. at 9.) Parole status does not deprive a federal court of jurisdiction over a habeas petition, however, because a parolee is still \"in custody.” See 28 U.S.C. § 2254(a); Jones v. Cunningham, 371 U.S. 236, 241-43, 83 S.Ct. 373, 376-77, 9 L.Ed.2d 285 (1963); Piercy v. Black, 801 F.2d 1075, 1077 n. 2 (8th Cir.1986). It further appears that Jones may have discharged his sentence since he filed the habeas petition. (See Resp’ts' Ex. A at 2.) A federal court retains jurisdiction over a habeas petition, however, so long as jurisdiction existed at the time the petition was filed. See Carafas v. LaVallee, 391 U.S. 234, 238-39, 88 S.Ct. 1556, 1559-60, 20 L.Ed.2d 554 (1968); Hanson v. Passer, 13 F.3d 275, 277 n. 1 (8th Cir.1994); see also Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989) (\"We have never held, however, that a habeas petitioner may be 'in custody’ under a conviction when the sentence imposed for that conviction has fully expired at the time the petition is filed.”). Therefore, we have jurisdiction to decide this appeal. .. Given that Jones's habeas claim was phrased in almost identical language as his state-court claim, our conclusions — that Jones did not raise a federal claim in his direct appeal but that he did raise a federal claim in his habeas petition— might appear contradictory at first glance. But these different conclusions are explained by the difference between the relatively unforgiving federal standard that governs our scrutiny of Jones's direct state-court appeal and the relatively lenient pleading requirements of the habeas rules. We essentially assume that state courts decide cases based on state law, so we require state-court litigants to raise federal claims explicitly; we essentially assume that a federal habeas petition invokes federal law, so we do not require a habeas petitioner to identify federal claims with more precision." } ]

[ { "docid": "22379678", "title": "", "text": "context involved to the administration of the National Labor Relations Act prompted us to grant the petitions of the Board and the Union for certiorari. 389 U. S. 815. At the outset the critical issue is what standard or standards should be applied in differentiating “employee” from “independent contractor” as those terms are used in the Act. Initially this Court held in NLRB v. Hearst Publications, 322 U. S. 111, that “Whether . . . the term ‘employee’ includes [particular] workers . . . must be answered primarily from the history, terms and purposes of the legislation.” 322 U. S., at 124. Thus the standard was one of economic and policy considerations within the labor field. Congressional reaction to this construction of the Act was adverse and Congress passed an amendment specifically excluding “any individual having the status of an independent contractor” from the definition of “employee” contained in § 2 (3) of the Act. The obvious purpose of this amendment was to have the Board and the courts apply general agency principles in distinguishing between employees and independent contractors under the Act. And both petitioners and respondents agree that the proper standard here is the law of agency. Thus there is no doubt that we should apply the common-law agency test here in distinguishing an employee from an independent contractor. Since agency principles are to be applied, some factual background showing the relationship between the debit agents and respondent company is necessary. These basic facts are stated in the Board’s opinion and will be very briefly summarized here. Respondent has district offices in most States which are run by a manager who, usually has several assistant managers under him. Each assistant manager has a staff of four or five debit agents, and the total number of such agents connected with respondent company is approximately 3,300. New agents are hired by district managers, after interviews; they need have no prior experience and are assigned to a district office under the supervision of an assistant district manager. Once he is hired, a debit agent is issued a debit book which contains" } ]

[ { "docid": "19853206", "title": "", "text": "not an employer within the meaning of Title VII and thus, is not subject to liability under this Federal Civil Rights statute. The defendant argues that it did not employ fifteen or more employees because its sales staff were independent contractors. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e (“Title VII”) defines an employer as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year ...” 42 U.S.C. § 2000e(b). An employee is defined as “an individual employed by an employer.” 42 U.S.C. § 2000e(f). In order for VIP to be deemed an “employer” within the meaning of Title VII and thus to be amenable to a Title VII cause of action, it must have at least fifteen employees. See, e.g., Kern v. City of Rochester, 93 F.3d 38 (2d Cir.1996). Whether a person is an “employee” or an “independent contractor” is discussed by the United States Supreme Court in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-24, 112 S.Ct. 1344, 1348, 117 L.Ed.2d 581 (1992). Where a statute containing the term “employee” does not helpfully define it, the common law agency test should be applied. The common law agency test contains “no shorthand formula or magic phrase that can be applied to find the answer ... all of the incidents of the relationship should be assessed and weighed with no one factor being decisive.” Id. at 324, 112 S.Ct. at 1349 (citation omitted)) see also Frankel v. Bally, Inc., 987 F.2d 86, 90 (2d Cir.1993). With respect to the definition of an employee as related to a real estate salesperson, in Breen v. Hunt Real Estate Corp., 65 FEP Cases 1392, 1994 WL 417017 (W.D.N.Y.1994), it was held that the plaintiff salesperson was an independent contractor. However, in Breen, the Court found all the common law agency indicia of an independent contractor. In particular, the Court found that the defendant realtor did not exercise day-to-day control over" }, { "docid": "7929974", "title": "", "text": "] was adverse and Congress passed an amendment ... [t)he obvious purpose of [which] was to have the ... courts apply general agency principles in distinguishing between employees and independent contractors under the Act”); see also Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 324, 112 S.Ct. 1344, 1349, 117 L.Ed.2d 581 (1992) (\"Congress amended the statute so construed to demonstrate that the usual common-law principles were the keys to meaning\"). Thus, cases interpreting employment relationships under the NLRA, such as the concept \"joint employer,” shed light on the issue in this case because they are all determined according to common law principles. . The NLRB named Roman Catholic as a respondent because it was conceded that St. Leo's Parish did not have a sufficient impact on commerce to meet the Board’s jurisdictional prerequisites. By finding that Roman Catholic was a joint employer of the lay teachers at St. Leo's School, the NLRB obtained its jurisdiction, a position which the Second Circuit upheld. The Supreme Court has since held in another matter that Congress did not intend to extend the jurisdiction of the NLRB to parochial schools because of implications it may have on the Free Exercise and Establishment Clauses of the First Amendment. See National Labor Relations Board v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979). This decision, of course, in no way impacts the determination that Roman Catholic was a joint employer of the lay teachers of St. Leo’s School. . Employment issues arise in cases alleging copyright infringement where the defendant argues that it hired the plaintiff to create the work in question. Other situations where courts utilize a common law test to determine whether an employment relationship exists include claims asserted under Title VII of the Civil Rights Act of 1964 (\"Title VII”), 42 U.S.C. §§ 2000e, et seq.; the Age Discrimination in Employment Act (\"ADEA”), 29 U.S.C. §§ 621, et seq.; and the Employee Retirement Income Security Act (\"ERISA”), 29 U.S.C. §§ 1001, et seq. See, e.g., Frankel, 987 F.2d at 89-90 (existence of employment relationship for" }, { "docid": "16320360", "title": "", "text": "U.S.C. § 2000e(b). In adopting this circular definition, Congress has left the term “employee” essentially undefined insofar as an- employee is to be distinguished from an independent contractor. The parties to this case agree that Title VII does not cover an independent contractor. It now appears to be settled that when Congress uses the term “employee” in a statute without defining it, the courts will presume that Congress intended to describe “the conventional master-servant relationship as understood by common-law agency doctrine.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 1347-48, 117 L.Ed.2d 581 (1992) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-740, 109 S.Ct. 2166, 2172, 104 L.Ed.2d 811 (1989) (addressing rights under the Copyright Act of 1976 to a sculpture “prepared by an employee within the scope of his or her employment”)). Following Reid, the Court in Nationwide adopted the “common-law test for determining who qualifies as an ‘employee’ under ERISA.” Id. 503 U.S. at 323, 112 S.Ct. at 1348. And again recently, the Court agreed that “employee” under Title VII is defined by “traditional principles of agency law.” Walters v. Metropolitan Educ. Enter. Inc., — U.S. —, —, 117 S.Ct. 660, 666, 136 L.Ed.2d 644 (1997). Because Congress had overruled the Supreme Court’s earlier interpretations of “employee” under both the National Labor Relations Act and the Social Security Act, in each of which the Court had defined employee “in fight of the mischief to be corrected and the end to be obtained,” see United States v. Silk, 331 U.S. 704, 713, 67 S.Ct. 1463 1468, 91 L.Ed. 1757 (1947), the Court in Reid and Nationwide abandoned that approach, adopting the presumption that “Congress means an agency law definition for ‘employee’ unless it clearly indicates otherwise.” Nationwide, 503 U.S. at 325, 112 S.Ct. at 1349. In order to establish a uniform nationwide application of the terms “employer,” “em ployee,” and “scope of employment” for purpose of applying federal statutes, Reid instructs that we rely on “the general common law of agency” and not the law of a particular state. Reid, 490" }, { "docid": "22069141", "title": "", "text": "29 U.S.C. § 1103(c)(1). Madonia, a Fourth Circuit case, reached a different conclusion. Madonia considered the status of a physician who was the director, president, and sole shareholder of MNA, the corporation that he founded. MNA had an employee welfare benefit plan established for the corporation’s employees. The court held that the doctor qualified as an “employee” of MNA under ERISA’s definition of the term — “employee” is “any individual employed by an employer,” 29 U.S.C. § 1002(6) — because he was an “individual” and he was “employed by” the corporation. See Madonia, 11 F.3d at 448. The court also looked beyond the definition and followed the Supreme Court’s mandate in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992), that it should employ “ ‘a common-law [agency] test for determining who qualifies as an “employee” under ERISA....’” Madonia, 11 F.3d at 448-49 (quoting Darden, 503 U.S. at 323, 112 S.Ct. 1344). Darden, in which the Court grappled with the question of whether an individual qualified as an employee or an independent contractor, directed that, because the statutory definition of “employee” was “circular and explained] nothing,” courts should use a common-law test for determining who qualifies as an employee under ERISA. 503 U.S. at 323, 112 S.Ct. 1344. And, because the common-law test contains “no shorthand formula or magic phrase that can be applied to find the answer ... [,] all of the incidents of the [employment] relationship must be assessed and weighed with no one factor being decisive.” Id. at 324, 112 S.Ct. 1344 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 254, 258, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968)). In discerning common-law principles in Madonia, the court looked to relevant Virginia law, which recognized that a “corporation is a legal entity separate and distinct from its shareholders” and that the corporate form may be disregarded only in extraordinary circumstances. Madonia, 11 F.3d at 449. In accordance with this principle, the court held that MNA’s corporate identity was the “employer,” and Dr. Madonia’s separate identity was MNA’s “employee.” See" }, { "docid": "9367045", "title": "", "text": "of that employer’s employees are permissible under the LMRA. 29 U.S.C. § 186(c)(5). Thus, if RNA’s owner-drivers are employees of RNA, the contributions would fall under this exception and be permissible under the LMRA. If the owner-drivers are independent contractors, however, because the LMRA “excludes any person having the status of independent contractor from the statutory definition of ‘employee,’” Mrowicki, 44 F.3d at 460, then any RNA contribution to the Funds on behalf of the owner-drivers would violate section 302 of the LMRA. Thus, we must determine whether these owner-drivers are employees of RNA. D. The Employment Status of RNA’s Oumer-Dñvers In Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992), the Supreme Court adopted “a common-law test for determining who qualifies as an ‘employee’ under ERISA.” Id. at 323, 112 S.Ct. 1344. While the Court listed twelve factors to be considered when making this determination, it noted that the common law test had “no shorthand formula or magic phrase that can be applied to find the answer,” and that “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.” Id. at 324, 112 S.Ct. 1344 (citations omitted). Prior to the Court’s decision in Darden, we applied our own five factor analysis to determine an individual’s employment status. See Knight v. United Farm Bureau Mut. Ins., 950 F.2d 377, 378-79 (7th Cir.1991). Like the Supreme Court’s approach in Darden, our analysis recognizes that “ ‘[o]f several factors to be considered, the employer’s right to control is the most important when determining whether an individual is an employee or an independent contractor.’ ” Compare EEOC v. N. Knox Sch. Corp., 154 F.3d 744, 747 (7th Cir.1998) (quoting Knight, 950 F.2d at 378) with Darden, 503 U.S. at 323, 112 S.Ct. 1344 (“In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished.”) (citations omitted). Since Dar-den, we have concluded that the factors described" }, { "docid": "5862407", "title": "", "text": "The necessity of an employment relationship Title VII forbids, among other things, “status-based discrimination by employers, employment agencies, labor organizations, and training programs.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, — U.S. -, 133 S.Ct. 2517, 2530, 186 L.Ed.2d 503 (2013) (citing 42 U.S.C. § 2000e-2(a)-(d)). Faush alleges that Tuesday Morning was his “employer” and discriminated against him on the basis of race. Accordingly, in order to prevail on his Title VII claim, he must demonstrate the existence of an “employment relationship” with Tuesday Morning. Covington v. Int’l Ass’n of Approved Basketball Officials, 710 F.3d 114, 119 (3d Cir.2013). Claims brought under the Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. § 951 et seq., are generally “ ‘interpreted coextensively with Title VII claims.’ ” Brown v. J. Kaz, Inc., 581 F.3d 175, 179 n. 1 (3d Cir.2009) (quoting Atkinson v. LaFayette Coll., 460 F.3d 447, 454 n. 6 (3d Cir.2006)). Although the Act protects certain limited categories of independent contractors that Title VII does not, see id. at 179 n. 1, Faush does not invoke these protections or dispute that he must demonstrate an employment relationship to prevail on his state-law claim. 2. The Enterprise test versus the Darden test The parties dispute the appropriate test for an employment relationship. Faush argues that the test for “joint employers” articulated in In re Enterprise Rent-A-Car Wage & Hour Emp’t Practices Litig., 683 F.3d 462 (3d Cir.2012), should apply in this context. Tuesday Morning argues that the test announced in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992), applies instead. Both parties contend that they win regardless of which multi-factor test applies, and the two tests are indeed quite similar. As a doctrinal matter, however, it is clear that the Darden test applies to Title VII cases, while the Enterprise test does not. In Darden, the Supreme Court was called upon to construe the term “employee” in the Employee Retirement Income Security Act (“ERISA”). Because the definition of “employee” in ERISA “is completely circular and explains nothing,” Darden, 503 U.S. at 323," }, { "docid": "20837141", "title": "", "text": "several decisions determining whether farmers “employed” the harvest workers furnished to them by farm labor contractors for purposes of the AWPA and the FLSA. Two of the more recent such rulings involved Haitian bean-picking crews, and in both instances the appeals court concluded that the farmer jointly employed the bean pickers along with the farm labor contractors. Antenor; Charles v. Burton, 169 F.3d 1322 (11th Cir.1999). This Court’s analysis is guided by the principles set out in these decisions. Under the FLSA and the AWPA, an entity “employs” an individual if it “suffers or permits” the individual to work. Id.; 29 U.S.C. § 203(g); 29 U.S.C. § 1802(5). This broad definition of employment is critical to furthering the remedial purposes of the AWPA and the FLSA. Antenor, 88 F.3d at 933. In defining employment under the AWPA and the FLSA, Congress expressly rejected the common-law definition of employment, which is based on limiting concepts of control and supervision. Id. at 929, 933. Under the narrower common-law principles of master and servant, the focus is on the hiring party’s right to control the manner and means by which the work is done. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). In contrast, under the broader FLSA definition, an entity “suffers or permits” an individual to work if, as a matter of economic reality, the worker is dependent on the entity. Martinez-Mendoza v. Champion Int'l Corp., 340 F.3d 1200, 1208 (11th Cir.2003). This is a definition of “striking breadth.” Nationwide Mutual Ins. Co., 503 U.S. at 326, 112 S.Ct. 1344; Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1495 (11th Cir.1993) (describing the definition as “sweeping”). It has been called “the broadest definition [of employee] that has ever been included in one act.” Antenor v. D & S Farms, 88 F.3d 925, 929 n. 5 (11th Cir.1996) (quoting U.S. v. Rosenwasser, 323 U.S. 360, 363 n. 3, 65 S.Ct. 295, 89 L.Ed. 301 (1945)). Because the AWPA and the FLSA are remedial statutes, the definition of “employ” should be construed broadly to effect Congress’" }, { "docid": "12818124", "title": "", "text": "F.2d 271, 272-73 (5th Cir.1981); Amarnare v. Merrill Lynch, Pierce, Fenner & Smith, 611 F.Supp. 344, 347 (S.D.N.Y.1984), aff'd sub nom. Aharnare v. Merrill Lynch, 770 F.2d 157 (2d Cir.1985). In a case involving the construction of a statute “[the court’s] starting point must be the language employed by Congress.” Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979). Unfortunately, a reading of Title VII is unavailing. After defining an “employer” as “a person ... who has fifteen or more employees ...,” the statute, with remarkable circularity, defines an employee as “an individual who is employed by an employer....” 42 U.S.C. § 2000e(b), (f) (1988). Where a federal statute provides such an unhelpful definition of the term “employee,” the Supreme Court has directed that the common-law principles of agency shall apply in determining who is an employee. Nationwide Mut. Ins. Co. v. Darden, — U.S. -, -, 112 S.Ct. 1344, 1348, 117 L.Ed.2d 581 (1992). Although Darden dealt with how the term “employee” was to be construed in the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1002(6) (1988), its reasoning was in no way limited to ERISA; moreover, the language interpreted by the Supreme Court in that case, “any individual employed by an employer,” is essentially identical to the language before this Court: “an individual who is employed by an employer.” See Lattanzio v. Security Nat’l Bank, 825 F.Supp. 86, 89-90 (E.D.Pa.1993) (applying Darden's common-law of agency analysis to Title VII's definition of employee); Stouch v. Brothers of Order, 836 F.Supp. 1134, 1139 (E.D.Pa.1993) (applying same analysis to ADEA’s definition of employee). The common-law test for distinguishing between an employee and an independent contractor was described in Darden as follows: “In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the" }, { "docid": "5862408", "title": "", "text": "not invoke these protections or dispute that he must demonstrate an employment relationship to prevail on his state-law claim. 2. The Enterprise test versus the Darden test The parties dispute the appropriate test for an employment relationship. Faush argues that the test for “joint employers” articulated in In re Enterprise Rent-A-Car Wage & Hour Emp’t Practices Litig., 683 F.3d 462 (3d Cir.2012), should apply in this context. Tuesday Morning argues that the test announced in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992), applies instead. Both parties contend that they win regardless of which multi-factor test applies, and the two tests are indeed quite similar. As a doctrinal matter, however, it is clear that the Darden test applies to Title VII cases, while the Enterprise test does not. In Darden, the Supreme Court was called upon to construe the term “employee” in the Employee Retirement Income Security Act (“ERISA”). Because the definition of “employee” in ERISA “is completely circular and explains nothing,” Darden, 503 U.S. at 323, 112 S.Ct. 1344, the Court concluded, as it had in similar situations, “ ‘that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine,’ ” id. at 322-23, 112 S.Ct. 1344 (quoting Cmty. for Creative Norn-Violence v. Reid, 490 U.S. 730, 739-40, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989)). Because Title VII’s definition of “employee” is similarly devoid of content, the common-law test outlined in Darden governs in the Title VII context as well. See Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 211-12, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997); Covington, 710 F.3d at 119; Brown, 581 F.3d at 180. The Enterprise test, by contrast, applies “[w]hen determining whether someone is an employee under the [Fair Labor Standards Act (“FLSA”)].” Enterprise, 683 F.3d at 467. The definition of “employee” in the FLSA is of “striking breadth” and “cover[s] some parties who might not qualify as such under a strict application of traditional agency law principles.” Dar-den, 503 U.S. at 326, 112 S.Ct. 1344. Accordingly, the “textual asymmetry” between Title" }, { "docid": "7929973", "title": "", "text": "pursuant to 28 U.S.C. § 1961. SO ORDERED. . The other defendants were voluntarily dismissed during the trial upon consent of the parties. . The concept of “joint employer” most frequently arises in the context of claims asserted under the National Labor Relations Act (\"NLRA”), 29 U.S.C. § 151 et seq., whether by individuals or the National Labor Relations Board. In 1944, the Supreme Court held that the concepts \"employee,\" \"employer” and \"labor dispute” as used in the NLRA imply something more than their common law definitions, and should be considered in light of the \"underlying economic facts rather than technically and exclusively by previously established legal classifications.” National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111, 128-29, 64 S.Ct. 851, 859, 88 L.Ed. 1170 (1944). Congress, however, amended the statute in 1947 to demonstrate that common law principles should be applied to interpret these concepts. See National Labor Relations Board v. United Ins. Co. of America, 390 U.S. 254, 256, 88 S.Ct. 988, 989-90, 19 L.Ed.2d 1083 (1968) (\"Congressional reaction to [Hearst ] was adverse and Congress passed an amendment ... [t)he obvious purpose of [which] was to have the ... courts apply general agency principles in distinguishing between employees and independent contractors under the Act”); see also Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 324, 112 S.Ct. 1344, 1349, 117 L.Ed.2d 581 (1992) (\"Congress amended the statute so construed to demonstrate that the usual common-law principles were the keys to meaning\"). Thus, cases interpreting employment relationships under the NLRA, such as the concept \"joint employer,” shed light on the issue in this case because they are all determined according to common law principles. . The NLRB named Roman Catholic as a respondent because it was conceded that St. Leo's Parish did not have a sufficient impact on commerce to meet the Board’s jurisdictional prerequisites. By finding that Roman Catholic was a joint employer of the lay teachers at St. Leo's School, the NLRB obtained its jurisdiction, a position which the Second Circuit upheld. The Supreme Court has since held in another matter that Congress" }, { "docid": "11575260", "title": "", "text": "on the independent contractor/employee issue, consistent with its May 24, 1994, order, and concluded the settlement between the parties resolved all remaining issues asserted by plaintiffs against Flint. The court further found that, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, there was no just reason for delay of entry of final judgment on the order granting summary judgment in favor of plaintiffs. II. The FLSA defines an employee as “any individual employed by an. employer.” 29 U.S.C. § 203(e)(1). In turn, “employer” is defined as including “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). The FLSA “defines the verb ‘employ’ expansively to mean ‘suffer or permit to work.’” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326, 112 S.Ct. 1344, 1350, 117 L.Ed.2d 581 (1992) (quoting 29 U.S.C. § 203(g)). The Supreme Court has emphasized that the “striking breadth” of this latter definition “stretches the meaning of ‘employee’ to cover some parties who might not qualify as such under a strict application of traditional agency law principles.” Id. Thus, in determining whether an individual is covered by the FLSA, “our inquiry is not limited by any contractual terminology or by traditional common law concepts of ‘employee’ or ‘independent contractor.’” Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 570 (10th Cir.1994) (citing Dole v. Snell, 875 F.2d 802, 804 (10th Cir.1989)). Instead, the economic realities of the relationship govern, and “the focal point is “whether the individual is economically dependent on the business to which he renders service ... or is, as a matter of economic fact, in business for himself.’ ” Id. The economic reality test includes inquiries into whether the alleged employer has the power to hire and fire employees, supervises and controls employee work schedules or conditions of employment, determines the rate and method of payment, and maintains employment records. Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir.1990). In applying the economic reality test, courts generally look at (1) - the degree of control exerted by the alleged" }, { "docid": "11410236", "title": "", "text": "was this general rule that informed the Supreme Court’s decision in Darden, 503 U.S. at 322-23, 112 S.Ct. at 1348. Furthermore, the Supreme Court has relied on that same broad principle of statutory interpretation to determine the meaning of a different term as used in a different statute, demonstrating that the principle applies for purposes other than merely distinguishing between employees and independent contractors. See Neder v. United States, 527 U.S. 1, 21-23, 119 S.Ct. 1827, 1840, 144 L.Ed.2d 35 (1999) (relying on Darden to construe the term “defraud,” as used in federal criminal fraud statutes, in a manner consistent with its settled meaning under the common law). .The rule applied in Darden is apposite in this case. Third, relying on the Supreme Court’s decision in NLRB v. Town & Country Electric, Inc., the plaintiffs contend that Darden does not always dictate application of the common law meaning of “employ” and its related variations of “employer” and “employee.” It is true, as the plaintiffs note, that in Town & Country the Supreme Court declined to apply Darden and instead followed the National Labor Relations Board’s (“NLRB”) interpretation of the term “employee.” 516 U.S. 85, 94, 116 S,Ct. 450, 455, 133 L.Ed.2d 371 (1995). But that case is materially distinguishable from this case in at least two respects. In Town & Country, the Supreme Court noted that it will defer to an agency interpretation where Congress has delegated authority to the agency to define a term. The Supreme Court concluded that, in the context of the National Labor Relations Act (“NLRA”), it was clear that “the task of defining the term ‘employed ” as it is used in-the NLRA, “[had] been assigned primarily to the agency.” Id. The plaintiffs point to no authority indicating that Congress intended for the DOL to define the term “employer” as it is used.in the IRCA in the same way that the NLRB is uniquely tasked with defining the term “employee” as that term is used in the NLRA. See id. at 89-90, 116 S.Ct. at 453 (“[The Supreme Court’s] decisions recognize that the [NLRB] often" }, { "docid": "7929975", "title": "", "text": "did not intend to extend the jurisdiction of the NLRB to parochial schools because of implications it may have on the Free Exercise and Establishment Clauses of the First Amendment. See National Labor Relations Board v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979). This decision, of course, in no way impacts the determination that Roman Catholic was a joint employer of the lay teachers of St. Leo’s School. . Employment issues arise in cases alleging copyright infringement where the defendant argues that it hired the plaintiff to create the work in question. Other situations where courts utilize a common law test to determine whether an employment relationship exists include claims asserted under Title VII of the Civil Rights Act of 1964 (\"Title VII”), 42 U.S.C. §§ 2000e, et seq.; the Age Discrimination in Employment Act (\"ADEA”), 29 U.S.C. §§ 621, et seq.; and the Employee Retirement Income Security Act (\"ERISA”), 29 U.S.C. §§ 1001, et seq. See, e.g., Frankel, 987 F.2d at 89-90 (existence of employment relationship for claims asserted under the ADEA (and Title VII) \"must be determined in accordance with common law agency principles”); Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 319, 112 S.Ct. 1344, 1346, 117 L.Ed.2d 581 (1992) (\"In this case we construe the term 'employee' at it appears in [ERISA] and read it to incorporate traditional agency law criteria for identifying master-servant relationship”). Thus, examination of these cases sheds light on the issue of whether the Diocese properly could be considered Gargano's employer. . The final trial transcript was not completed at the time of this decision. A draft transcript is on file, although its pagination may differ slightly from the final transcript. . In County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295 (2d Cir.1990), the Second Circuit discussed the stringent standard for overturning a jury's verdict on a Rule 50 motion: Judgment n.o.v. may be granted only when the movant's evidence is so overwhelming that a reasonable jury could only have reached the opposite result, Baskin v. Hawley, 807 F.2d 1120, 1129" }, { "docid": "22852448", "title": "", "text": "individually and jointly, for compliance with all the applicable provisions of the act, including the overtime provisions, with respect to the entire employment for the particular workweek,” although “[i]n discharging the joint obligation each employer may, of course, take credit toward minimum wage and overtime requirements for all payments made to the employee by the other joint employer or employees.” Bellevue nevertheless contends that the district court erred in concluding, as a matter of law, that it qualified as Barfield’s joint employer. 3. The Economic Realities Test for Determining Who Qualifies as an Employer Under the FLSA In instances where Congress uses terms — such as employer and employment — “that have accumulated settled meaning under ... the common law,” courts generally infer, unless the statute indicates otherwise, that “Congress means to incorporate the established meaning of these terms,” e.g., “the conventional master-servant relationship as understood by common-law agency doctrine.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992) (internal quotation marks omitted). The Supreme Court has observed, however, that the “striking breadth” of the FLSA’s definition of “employ” “stretches the meaning of ‘employee’ to cover some parties who might not qualify as such under a strict application of traditional agency law principles,” id. at 326, 112 S.Ct. 1344, in order to effectuate the remedial purposes of the act, see, e.g., United States v. Rosenwasser, 323 U.S. 360, 363, 65 S.Ct. 295, 89 L.Ed. 301 (1945). See also Rutherford Food Corp. v. McComb, 331 U.S. 722, 729, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947) (“This Act contains its own definitions, comprehensive enough to require its application to many persons and working relationships, which prior to this Act, were not deemed to fall within an employer-employee category.”) (internal quotation marks omitted); accord Frankel v. Bally, Inc., 987 F.2d 86, 89 (2d Cir.1993) (noting courts’ recognition of “the expansive nature of the FLSA’s definitional scope” as beyond the common law agency test in light of “the remedial purpose underlying the legislation”). Accordingly, the Court has instructed that the determination of whether an employer-employee relationship" }, { "docid": "6794020", "title": "", "text": "meaning,” id. at 847 n. 4, that is limited “to those having an existing employment relationship with the employer in question,” even though that argument may seem plausible “at first blush.” Id. at 846. Canvassing various federal statutes, Robinson noted that Congress has not used the term “employee” with precision, but rather has used the term, at various times, to refer to both former and prospective employees. Id. at 846-47; see also NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 116 S.Ct. 450, 133 L.Ed.2d 371 (1995) (upholding the NLRB’s determination that the term “employees” in the National Labor Relations Act (NLRA) applies to prospective employees who were paid union organizers); Passer v. American Chem. Soc’y, 935 F.2d 322, 330-31 (D.C.Cir.1991) (term “employees” in Age Discrimination in Employment Act (ADEA) includes former employees). Thus, absent an express “temporal qualifier,” such as “current,” Robinson, 117 S.Ct. at 846, Congress’ use of the word “employees” does not inherently exclude former and prospective employees. Third, an example of ambiguity, thus coun-selling deference to the agency, comes from the definitional section enacted by Congress. The FMLA provides that the definition of “employee” in the FLSA, 29 U.S.C. § 203(e), is also applicable to the FMLA. See 29 U.S.C. § 2611(3). That definition, “any individual employed by an employer,” 29 U.S.C. § 203(e), (which is subject to certain exceptions not relevant here) does not make the term any less ambiguous. In Robinson, the Supreme Court found that the identical definition contained in Title VII did not add anything to “employee” which made it less ambiguous. See 117 S.Ct. at 847; see also Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992) (“ERISA’s nominal definition of ‘employee’ as ‘any individual employed by an employer’ is completely circular and explains nothing.” (Citation omitted.)). Pratt & Whitney argues that, although the term “employed” could mean both “is employed” or “was employed,” see Robinson, 117 S.Ct. at 847 (noting this ambiguity), it cannot mean “will be employed,” and so the use of the FLSA definition at least excludes prospective" }, { "docid": "15030350", "title": "", "text": "tests to determine whether a claimant is a covered employee rather than an unprotected independent contractor under antidiscrimination acts such as the ADEA. The first test is the traditional common law test of agency which focuses on the employer’s right of control using a multifactored analysis. See Frankel v. Bally, Inc., 987 F.2d 86 (2d Cir.1993). The second test— typically more expansive — is the “economic realities” test, which holds that “employees are those who as a matter of economic reality are dependent upon the business to which they render service.” Bartels v. Birmingham, 332 U.S. 126, 130, 67 S.Ct. 1547, 1550, 91 L.Ed. 1947 (1947); Doty v. Elias, 733 F.2d 720, 722-23 (10th Cir.1984). The third test is a “hybrid” test, which considers the economic realities of the employment relationship but retains a focus on the employer’s right to control. See Oestman v. National Fanners Union Ins. Co., 958 F.2d 303 (10th Cir.1992). The First Circuit has not previously decided which test to apply to the ADEA. In view of the Supreme Court’s unanimous decision in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992), we now adopt the common law test for determining who qualifies as an “employee” under the ADEA and expressly hold that covered employees under the ADEA are those who are employees under traditional agency law principles. While the Supreme Court has not directly determined this issue, the Court in Darden faced the task of interpreting a definition of “employee” found in ERISA, 29 U.S.C. § 1002(6) (“any individual employed by an employer”), that is virtually, identical to that found in the ADEA, 29 U.S.C. § 630(f) (“an individual employed by any employer”). See Darden, 503 U.S. at 323, 112 S.Ct. at 1348. The Court found this to be a “nominal definition” that “is completely circular and explains nothing.” Id. In the absence of any provision suggesting a contrary congressional design or an indication that “absurd results” would follow, the Court took the view that the term “employee” should be interpreted in accordance with traditional agency law principles:" }, { "docid": "7993092", "title": "", "text": "has used the term ‘employee’ without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.” Reid, 490 U.S. at 739-40, 109 S.Ct. 2166; see also Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). The phrase “master and servant” means “[t]he relation between two persons, one of whom (the master) has authority over the other (the servant), with the power to direct the time, manner, and place of the services provided.” Black’s Law Dictionary 1123 (10th ed.2014). Under the common law, the primary indicium of a master-servant relationship is a master’s ability to control the manner and means by which production is accomplished. See Reid, 490 U.S. at 751, 109 S.Ct. 2166 (citing Restatement (Second) of Agency § 220). In Nationwide Mutual Insurance Co. v. Darden, the Supreme Court considered whether a claimant was an “employee” under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq., which nominally defines an “employee” as “any individual employed by an employer.” Id. at § 1002; 503 U.S. at 322-27, 112 S.Ct. 1344. There, the Court applied Reid’s “well established principle” that Congress intended “employee” to connote a conventional master-servant relationship under the common law, and adopted a common-law test for distinguishing between an employee and an independent contractor. 503 U.S. at 322-27, 112 S.Ct. 1344. The Court explained that Reid signaled “[the Supreme Court’s] abandonment of [United States v. Silk ]’s [331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947) ] emphasis on construing [a] term in the light of the mischief to be corrected and the end to be attained.” Darden, 503 U.S. at 325, 112 S.Ct. 1344 (internal quotation marks omitted). In other words, the Darden court confirmed that courts should presume Congress intended a term to have its settled, common-law definition “unless [the statute] clearly indicates otherwise,” even over the argument that a broad reading is necessary to “advance ... [an act’s] remedial purposes.” Id. at 325, 112 S.Ct. 1344. In this case, the statutory text" }, { "docid": "15030351", "title": "", "text": "decision in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992), we now adopt the common law test for determining who qualifies as an “employee” under the ADEA and expressly hold that covered employees under the ADEA are those who are employees under traditional agency law principles. While the Supreme Court has not directly determined this issue, the Court in Darden faced the task of interpreting a definition of “employee” found in ERISA, 29 U.S.C. § 1002(6) (“any individual employed by an employer”), that is virtually, identical to that found in the ADEA, 29 U.S.C. § 630(f) (“an individual employed by any employer”). See Darden, 503 U.S. at 323, 112 S.Ct. at 1348. The Court found this to be a “nominal definition” that “is completely circular and explains nothing.” Id. In the absence of any provision suggesting a contrary congressional design or an indication that “absurd results” would follow, the Court took the view that the term “employee” should be interpreted in accordance with traditional agency law principles: “[w]here Congress uses terms that have accumulated settled meaning under ... the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.... In the past, when Congress has used the term ‘employee’ without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.” Darden, 503 U.S. at 322-23, 112 S.Ct. at 1348 (internal citations omitted) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40, 109 S.Ct. 2166, 2172, 104 L.Ed.2d 811 (1989) (internal quotation marks' omitted)). To help avoid any confusion on the matter, the Darden Court went on to summarize the operative common law test with the following language: “In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities" }, { "docid": "9441506", "title": "", "text": "in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). The statute defines “covered entity” as an employer, “employer” as a person engaged in an industry affecting commerce and employing more than fifteen people, and “employee” as someone employed by an employer. 42 U.S.C. § 12111(2), (4) — (5). The definition of a “qualified individual with a disability” clearly fore sees an employment relationship. 42 U.S.C. § 12111(8). Overall, the determination of what constitutes an employer-employee relationship under the ADA is not evident from the statute. To answer this question, Johnson cites the “economic realities” test we used in Lilley v. BTM Corp., 958 F.2d 746 (6th Cir.), cert. denied, 506 U.S. 940, 113 S.Ct. 376, 121 L.Ed.2d 287 (1992). The city argues that the Lilley test was superseded by the Supreme Court’s decision in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992), which propounded a common-law agency test. For its part, the district court held that Johnson lost under both tests. We hold that the proper test is the common-law test suggested by the city and Darden. Although Darden was an ERISA case, it stands for the proposition that when a statute has left a term undefined, has left no hint in the legislative history of its intended meaning for the terms, and the term has “accumulated settled meaning” under the common law, there is a presumption that Congress meant to incorporate the common-law definition into the statute. Darden, 503 U.S. at 322, 112 S.Ct. 1344. The Darden Court noted the use of this principle in a Copyright Act case, and extended it to ERISA. It is a rule of general applicability. See Ware v. United States, 67 F.3d 574 (6th Cir.1995) (applying Darden to Internal Revenue Code’s definition of “employee”). In this case, the ADA uses the same sort of vague definition of employee and employer found in ERISA. Compare 42 U.S.C. § 1211KADA) with 29 U.S.C. § 1002 (ERISA). The" }, { "docid": "7522280", "title": "", "text": "in turn. 1. Was Carter an “employee” under § 706.011? The distinction between an employee or an independent contractor is made in many areas of the law, including income taxation (see Spicer Accounting, Inc. v. United States, 918 F.2d 90 (9th Cir.1990)), Employment Retirement Income Security Act of 1974 (ERISA) (see Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992)), workers’ compensation (see S.G. Borello & Sons, Inc. v. Dep’t. of Indus., 48 Cal.3d 341, 256 Cal.Rptr. 543, 769 P.2d 399 (1989)), and employment • discrimination (see Adcock v. Chrysler Corp., 166 F.3d 1290 (9th Cir.1999), petition for cert. filed, 67 U.S.L.W. 3749 (U.S. May 10, 1999) (No. 98-1902)), among many others. Indeed, whenever a federal statute uses the term “employee” and “contains no other provision that either gives specific guidance to the meaning of the term ‘employee’ or suggests that the common law definition is inappropriate, we must presume that Congress intended to incorporate traditional principles of agency law.” Loomis Cabinet Co. v. OSHRC, 20 F.3d 938, 941 (9th Cir.1994) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992)). California has also recognized that “[m]uch 20th-century legislation for the protection of ‘employees’ has adopted the ‘independent contractor’ distinction as an express or implied limitation on coverage.” S.G. Borello & Sons, 48 Cal.3d at 350, 256 Cal.Rptr. 543, 769 P.2d 399. When a distinction between “employees” and “independent contrab-tors” becomes relevant, both federal and state law provide multiple-factor tests that distinguish one from the other. California follows the traditional common law distinction between “employees” and “independent contractors,” generally referring to the factors set forth in the Restatement (Second) of Agency § 220. See id. at 350-351, 256 Cal.Rptr. 543, 769 P.2d 399 (1989). The “principal test” is “whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.” Id. at 350, 256 Cal.Rptr. 543, 769 P.2d 399 (quoting Tieberg v. Unemployment Ins. Appeals Bd., 2 Cal.3d 943, 946, 88 Cal.Rptr. 175, 471 P.2d 975" } ]

[ { "docid": "13244003", "title": "", "text": "on the scene), cert. denied, 451 U.S. 1021, 101 S.Ct. 3014, 69 L.Ed.2d 394 (1981). Further, the scope of the search of areas of the house in which a body could be found was appropriate. We also find persuasive the government’s alternate assertion that had the officers not known Arcobasso’s identity, the weapons were properly unloaded and seized as a precaution to assure their safety and that of any other individual who might have been present. See United States v. Antwine, 873 F.2d 1144, 1147 (8th Cir.1989) (“a warrantless seizure of a weapon may be considered ‘reasonable’ within the meaning of the Fourth Amendment when justified by an officer’s legitimate concern for someone’s safety”) (citing New York v. Quarles, 467 U.S. 649, 653 n. 3, 104 S.Ct. 2626, 2630 n. 3, 81 L.Ed.2d 550 (1984)); United States v. Robinson, 756 F.2d 56, 60 (8th Cir.1985) (temporary seizure and unloading of handgun a reasonable precaution for safety of persons on premises; when officers learned of prior conviction, handgun became subject to seizure as illegal weapon possessed by felon); United States v. Malachesen, 597 F.2d 1232, 1234-35 (8th Cir.), cert. denied, 444 U.S. 902, 100 S.Ct. 214, 62 L.Ed.2d 139 (1979). Therefore, the district court’s ruling on the motion to suppress is affirmed as it is not clearly erroneous. The district court ruled that the matters concerning Corporal Sampson were irrelevant since his only involvement in the case was to review the police report. Arco-basso alleges for the first time on appeal that the evidence regarding Sampson was not offered for the truth of the matters asserted therein. At trial, however, Arco-basso’s offers of proof on Sampson’s alleged extortion and proposition to Arcobas-so’s wife were presented as factual. The district court’s rulings on admissibility of evidence as well as those governing cross-examination are not to be disturbed absent an abuse of discretion. United States v. Milham, 590 F.2d 717, 721 (8th Cir.1979). We conclude that the district court did not abuse its discretion in excluding the proffered testimony from evidence. Finally, Arcobasso mentions several ways in which the Sentencing Guidelines resulted in" } ]

[ { "docid": "11780132", "title": "", "text": "weapon that fit the ammunition. The suspect said that he did and that the weapon was in the back seat. The officers then entered the car and discovered a rifle under some other items in the back seat. The court concluded that “police knowledge of the existence of a firearm was triggered by their plain view of the box of ammunition and subsequent inquiry,” and hence within the rule established by Coolidge. Id. at 990. The court then held that “[wjhen the officers learned that there was a gun in the car, they had reasonable grounds to seize it for their own self-protection within the Terry rationale.” Id. at 990-91. In the alternative, the court held that the seizure was valid under Cady because the police were acting in a community caretaker function when the gun was discovered. Id. at 991. In United States v. Malachesen, 597 F.2d 1232, 1234 (8th Cir.1979), the Eighth Circuit interpreted Coolidge as permitting a police officer to seize a weapon that was not obvious contraband based on the officer’s reasonable belief that the weapon posed a safety threat. In that case, police officers executed a search warrant for marijuana and a snowmobile at the defendant’s home and adjacent property. During the search, a police officer discovered a cocked and loaded handgun under a mattress and noticed a bullet hole in the bedroom wall near the bed. The gun was placed in the possession of the inventory officer for the duration of the search. The defendant was not present during the search, but his roommate was. Before the search was completed, the officer who found the gun learned that the defendant had a felony record. When the defendant returned home, he admitted to ownership of the gun and his prior felony conviction. The Malachesen court concluded that, even though the incriminating nature of the handgun was not immediately apparent to the police, their temporary seizure of the gun was a reasonable precaution to assure the safety of all persons on the premises during the search. Id. The court also held that the temporarily seized hand" }, { "docid": "5541503", "title": "", "text": "was not the individual he previously encountered at the same location. Smith was indicted for possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(9). Smith moved to suppress the evidence found in his home. The district court denied the motion to suppress, concluding the officers lawfully entered Smith’s home pursuant to the community caretaking exception to the warrant requirement and that because the officers were lawfully on the premises, the firearm was admissible' under the plain view doctrine. Smith pleaded guilty to being a felon in possession of the firearm but preserved his right to appeal the district court’s denial'of the motion to suppress. The district court sentenced Smith to 41 months imprisonment. This timely appeal followed. II. On appeal, Smith argues- the district court erred in denying his motion to suppress. “A mixed standard of review applies , to the denial of a motion to suppress evidence.” United States v. Williams, 777 F.3d 1013, 1015 (8th Cir.2015). We review the district court’s findings of fact for clear error and the denial of the suppression motion de novo. Id.; United States v. Orozco, 700 1178 (8th Cir.2012). F.3d 1176, The Fourth Amendment provides, in relevant part, “[t]he right of the people to be secure in their .., houses ... against unreasonable searches and seizures, shall not be violated.” “At the Amendment’s Very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable government intrusion.’ ” Florida v. Jardines, — U.S. -, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013) (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961)). While it is a basic principle of the Fourth Amendment that warrantless searches and seizures inside a home are presumptively unreasonable, the ultimate touchstone of the Fourth Amendment is “reasonableness,” and it follows that the warrant requirement is subject to certain exceptions. Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (citing Flippo v. West Virginia, 528 U.S. 11, 13, 120 S.Ct. 7," }, { "docid": "5551928", "title": "", "text": "he knew that Malachesen had a prior conviction and owned the weapon. The court relied on United States v. Clark, 531 F.2d 928 (8th Cir. 1976), a case in which this court affirmed the suppression of a handgun. In Clark, pursuant to a warrant designed to locate controlled substances, the police searched petitioner Clark’s home and adjacent repair shop. During the search, an officer asked Clark whether he had any guns. Clark reported that he possessed several loaded firearms and told the officers where the guns could be found. As the district court particularly noted in its opinion, “[t]he officers [without Clark’s knowledge] copied down the serial number on the gun and traced it to a firearms dealer in another state and a second search warrant was then issued for the gun.” The investigating officers in Clark lacked reasonable cause to believe that the handgun was contraband, that it evidenced any crime, or that it was within the scope of the search warrant. Therefore, the seizure of the weapon in Clark was not justified under the plain view exception to the warrant requirement, for the “incriminating nature” of the gun was not immediately apparent. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The district court reasoned that here, as in Clark, the handgun’s “incriminating nature” was not immediately apparent to the investigating officers. Because the weapon did not appear to be related in any way to the authorized object of the search, i. e., marijuana, the court held that the search and seizure of the gun could not be justified as a plain view exception to the warrant requirement and violated Malachesen’s fourth amendment rights. The court also determined that the officers lacked reasonable cause to fear for their physical safety and therefore rejected the Government’s attempt to justify the search and seizure of the weapon for reasons of safety. In our view, United States v. Clark, supra, does not apply to this case. In Clark, the extensive exploratory search exceeded the scope of the warrant authorizing a search for controlled substances. Unlike" }, { "docid": "4460522", "title": "", "text": "of unauthorized possession with intent to distribute of controlled substances. See, e. g., United States v. Golay, 502 F.2d 182, 184 & n.4 (8th Cir. 1974). We do, however, find that the shotgun constituted evidence of another crime, that is, receipt of a firearm by a convicted felon. It is unclear from the record whether Officer Elliott, the seizing officer, had personal knowledge of appellant’s prior felony conviction at the moment he saw the shotgun in the closet. Special Agent Wilson, evidently representing ATF and present on the scene during the execution of the search warrant, however, did possess such information and thus knew that appellant’s possession of the shotgun was unlawful. The record in the present case indicates that ATF special agents and local police officers were working closely together during the investigation for and in execution of the search warrant, although there is no record evidence of actual communication between Special Agent Wilson and Officer Elliott. Under these circumstances we think that consideration of the collective knowledge of the officers on the scene, including Special Agent Wilson, is appropriate. See United States v. Stratton, 453 F.2d 36, 37 (8th Cir.), cert. denied, 405 U.S. 1069, 92 S.Ct. 1515, 31 L.Ed.2d 800 (1972) (collective knowledge for probable cause to arrest); accord, United States v. Bernard, 623 F.2d 551, 560-61 & n.5 (9th Cir. 1979) (collective knowledge for probable cause to arrest); United States v. Clark, 559 F.2d 420, 424 (5th Cir.), cert. denied, 434 U.S. 969, 98 S.Ct. 516, 54 L.Ed.2d 457 (1977); United States v. Woods, 544 F.2d 242, 259-60 (6th Cir. 1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 787, 50 L.Ed.2d 778, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361, 431 U.S. 954, 97 S.Ct. 2675, 53 L.Ed.2d 270 (1977). Cf. United States v. Malachesen, 597 F.2d 1232, 1234-35 (8th Cir.) (seizure of loaded handgun, although incriminating nature may not have been immediately apparent to investigating officers, upheld as reasonable precaution to ensure safety), cert. denied, 444 U.S. 902, 100 S.Ct. 214, 62 L.Ed.2d 139 (1979). Thus, the observation of the shotgun constituted probable cause" }, { "docid": "11987737", "title": "", "text": "search conducted abroad by foreign authorities and observing in dicta that “the Bill of Rights does apply extra-territorially to protect American citizens against the illegal conduct of United States agents” (citing Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957))). Nevertheless, we have not yet determined the specific question of the applicability of the Fourth Amendment’s Warrant Clause to overseas searches. Faced with that question now, we hold that the Fourth Amendment’s warrant requirement does not govern searches conducted abroad by U.S. agents; such searches of U.S. citizens need only satisfy the Fourth Amendment’s requirement of reasonableness. The Fourth Amendment to the U.S. Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Supreme Court has explained that “[i]t is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (internal quotation marks omit ted). “Nevertheless, because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to certain exceptions.” Id. (internal quotation marks omitted); see also Vemonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (“[A] warrant is not required to establish the reasonableness of all government searches.”); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (recognizing exceptions). Familiar exceptions to the warrant requirement arise from exigent circumstances, such as the risk of imminent destruction of evidence or the “hot pursuit” of a fleeing suspect. See Brigham City, 547 U.S. at 403, 126 S.Ct. 1943. Warrantless searches are also permitted in connection with valid arrests, see Michigan v. DeFillippo, 443 U.S. 31, 35, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979) (“[A]n arresting officer may, without a warrant, search a person validly arrested.”), and on a consensual basis, see Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (“[0]ne of the specifically established exceptions" }, { "docid": "1047773", "title": "", "text": "Upton, 104 S.Ct. at 2888; United States v. Depee, 728 F.2d 1168, 1170 (8th Cir.1984). See United States v. Thompson, 751 F.2d 300, 302 (8th Cir.1985) (per curiam). The Court in Gates explained that “[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty’ but the degree of suspicion that attaches to particular types of non-criminal acts.” Gates, 103 S.Ct. at 2335 n. 13. See Depee, 728 F.2d at 1170. The corroborating evidence here, when viewed as isolated instances, was seemingly innocent; however, it was also entirely consistent with the tip of the informant whose reliability had been proven in the past. Therefore, we have no difficulty finding that all of the evidence taken as a whole provided the magistrate with a substantial basis for concluding that probable cause existed to issue the warrant. To Robinson’s other fourth amendment argument that the seizure of the weapon was improper in that it was beyond the scope of the warrant, the government counters that the weapon was properly seized under the plain view exception to the warrant requirement. For an item to be legally seized under this exception, (1) the initial intrusion must have been proper; (2) the discovery of the evidence must have been inadvertent; and (3) the incriminating nature of the evidence must have been “immediately apparent.” United States v. Robinson, 720 F.2d 18, 19 (8th Cir.1983); United States v. Johnson, 707 F.2d 317, 321 (8th Cir.1983). The first two elements may be dealt with summarily. As we have stated, the initial intrusion was proper because the officers were in the apartment under a properly issued warrant, and the facts show the discovery of the weapon was inadvertent in that the officers did not expect to find it. As to the third element, the situation here is very similar to that in the case of United States v. Malachesen, 597 F.2d 1232 (8th Cir.), cert. denied, 444 U.S. 902, 100 S.Ct. 214, 62 L.Ed.2d 139 (1979). In Malachesen officers were searching defendant’s apartment for drugs under a properly issued warrant and" }, { "docid": "5551930", "title": "", "text": "the events in Clark, the officers in the instant case accidentally discovered the handgun in the course of their authorized search for marijuana and a snowmobile. When he found the gun, Officer Moeller uncocked and unloaded it, pursuant to local standard police procedure, and delivered the weapon to the inventory officer. Clark does not address this type of temporary seizure, for limited safety purposes, of a loaded and cocked handgun discovered in the course of executing a search warrant. Although the' incriminating nature of the handgun may not have been immediately apparent to the investigating officers, its temporary seizure, unloading, and retention by a responsible officer (here the inventory officer) seems a reasonable precaution to assure the safety of all persons on the premises during the search. See United States v. Chapman, 549 F.2d 1075 (6th Cir. 1977). A loaded, cocked handgun poses a threat to anyone within its range of fire. Moreover, temporary seizure undercuts the chance of mishap — the accidental discharge of the handgun through mishandling by someone on the premises, or even its intentional use by Malachesen’s roommate or a cohort. Common sense dictates that the weapon should be unloaded and, at least temporarily, kept in a safe place. When the officers learned that Malachesen had a prior conviction, the temporarily-seized handgun became contraband and subject to seizure as an illegal weapon possessed by a felon. Accordingly, we find no violation of Malachesen’s fourth amendment rights. We reverse the order of the district court suppressing the introduction into evidence of the handgun, and we remand this case for further proceedings. . Officer Moeller testified that safety considerations motivated the seizure of the gun. Moreover, he stated that standard police procedure directed officers to secure firearms discovered in the course of a search. . The investigating officers examined and recorded the serial numbers of hand tools, motorcycles, firearms, a television, stereo equipment, and other shop equipment and personal effects observed in the course of searching Clark’s premises. United States v. Clark, 531 F.2d 928, 931 (8th Cir. 1976). . Although he did not challenge the search leading" }, { "docid": "11780133", "title": "", "text": "reasonable belief that the weapon posed a safety threat. In that case, police officers executed a search warrant for marijuana and a snowmobile at the defendant’s home and adjacent property. During the search, a police officer discovered a cocked and loaded handgun under a mattress and noticed a bullet hole in the bedroom wall near the bed. The gun was placed in the possession of the inventory officer for the duration of the search. The defendant was not present during the search, but his roommate was. Before the search was completed, the officer who found the gun learned that the defendant had a felony record. When the defendant returned home, he admitted to ownership of the gun and his prior felony conviction. The Malachesen court concluded that, even though the incriminating nature of the handgun was not immediately apparent to the police, their temporary seizure of the gun was a reasonable precaution to assure the safety of all persons on the premises during the search. Id. The court also held that the temporarily seized hand gun became contraband and subject to seizure when the officers learned of the defendant’s prior felony conviction. Id. at 1235. The parties do not dispute that Deputy Julian was lawfully positioned when the gun came into plain view. Thus, for the seizure of a gun in plain view (and which is not obvious contraband) to be reasonable under the Fourth Amendment, a police officer must reasonably believe, based on specific and articulable facts, that the weapon posed an immediate danger to officer or public safety. Deputy Julian had come to the property to serve an arrest warrant on Tony Arnold. Julian testified that he connected Bishop’s name with a person known for violent criminal behavior, and that Bishop had disappeared from the car into a heavily wooded area without making a sound in the thirty seconds that Bishop was out of the deputy’s sight. Julian also testified that, upon discovering the handgun, he immediately became concerned for his safety. Deputy Julian’s concern for his safety was objectively reasonable: Julian had reason to assume that Bishop" }, { "docid": "5551927", "title": "", "text": "property for a 1973 Polaris snowmobile and Colombian marijuana. During the course of the search, Officer James Moeller discovered a cocked and apparently loaded .22 caliber revolver beneath the mattress of a bed and noticed a bullethole in the bedroom wall near the bed. Officer Moeller picked up the weapon, uncocked the hammer, and unloaded it. He then turned the pistol over to the inventory officer on the premises. Although Malachesen was not at home during the search, his roommate was present. While the the search for the marijuana continued, with the firearm in the possession of the inventory officer, Officer Moeller learned from two detectives, also searching the premises, that Malachesen had a prior felony conviction. When Malachesen returned home, he admitted under Moeller’s questioning, ownership of the weapon and his prior felony conviction. This information and the seized handgun served as the foundation for the present indictment against Malachesen for violation of 18 U.S.C. § 922(h). In granting the motion to suppress, the district court stressed that officer Moeller seized the handgun before he knew that Malachesen had a prior conviction and owned the weapon. The court relied on United States v. Clark, 531 F.2d 928 (8th Cir. 1976), a case in which this court affirmed the suppression of a handgun. In Clark, pursuant to a warrant designed to locate controlled substances, the police searched petitioner Clark’s home and adjacent repair shop. During the search, an officer asked Clark whether he had any guns. Clark reported that he possessed several loaded firearms and told the officers where the guns could be found. As the district court particularly noted in its opinion, “[t]he officers [without Clark’s knowledge] copied down the serial number on the gun and traced it to a firearms dealer in another state and a second search warrant was then issued for the gun.” The investigating officers in Clark lacked reasonable cause to believe that the handgun was contraband, that it evidenced any crime, or that it was within the scope of the search warrant. Therefore, the seizure of the weapon in Clark was not justified under" }, { "docid": "4460523", "title": "", "text": "including Special Agent Wilson, is appropriate. See United States v. Stratton, 453 F.2d 36, 37 (8th Cir.), cert. denied, 405 U.S. 1069, 92 S.Ct. 1515, 31 L.Ed.2d 800 (1972) (collective knowledge for probable cause to arrest); accord, United States v. Bernard, 623 F.2d 551, 560-61 & n.5 (9th Cir. 1979) (collective knowledge for probable cause to arrest); United States v. Clark, 559 F.2d 420, 424 (5th Cir.), cert. denied, 434 U.S. 969, 98 S.Ct. 516, 54 L.Ed.2d 457 (1977); United States v. Woods, 544 F.2d 242, 259-60 (6th Cir. 1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 787, 50 L.Ed.2d 778, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361, 431 U.S. 954, 97 S.Ct. 2675, 53 L.Ed.2d 270 (1977). Cf. United States v. Malachesen, 597 F.2d 1232, 1234-35 (8th Cir.) (seizure of loaded handgun, although incriminating nature may not have been immediately apparent to investigating officers, upheld as reasonable precaution to ensure safety), cert. denied, 444 U.S. 902, 100 S.Ct. 214, 62 L.Ed.2d 139 (1979). Thus, the observation of the shotgun constituted probable cause for the seizure of the shotgun as evidence of another crime being committed in the presence of the officers, that is, receipt of a firearm by a convicted felon. See, e. g. United States v. Golay, supra, 502 F.2d at 184 & n.3. We conclude that the district court did not err in denying the motion to suppress evidence, and, accordingly, affirm the judgment of the district court. . The Honorable William R. Collinson, United States District Judge for the Western District of Missouri. . Appellant was also convicted of possessibn with intent to distribute another Schedule IV controlled substance (phenobarbital) (count III). The government later dismissed count III with leave of court after an independent chemical analysis indicated the absence of phenobarbital but the presence of other substances which tested “false positive” for phenobarbital. . In Hare the Sixth Circuit concluded that “inadvertence” in this context means that the police must be without probable cause to believe evidence would be discovered until they actually observe it in the course of an otherwise-justified search. There" }, { "docid": "3729992", "title": "", "text": "incriminating nature, they needed to “conduct[ ] some further search.” Dickerson, 508 U.S. at 375, 113 S.Ct. 2130. They measured the barrel of the shotgun with a ruler and dowel to determine that it was approximately one-and-a-half inches shorter than the legal requirement and only noticed the obliterated serial number when checking it to determine whether the gun was used in any past incidents. Nonetheless, we think the police were justified in temporarily seizing the shotgun under these circumstances. We reemphasize the situation confronting the officers: they received a 911 call that a violent domestic dispute was underway; they were told that a firearm was present in the household where the dispute was occurring; and, after arriving within minutes of the call, they discovered that other persons were there whose presence had not been disclosed during the 911 call. Although the situation was seemingly calm at their arrival, domestic disputes often involve high emotions and can quickly escalate to violence. Common sense dictates that a firearm that could be accessed by someone at the scene and used against officers or others should be unloaded, and at least temporarily, kept in a safe place. See, e.g., United States v. Bishop, 338 F.3d 623, 628-29 (6th Cir.2003) (holding that temporary seizure of a handgun in plain view was proper where the officer reasonably feared that leaving the gun accessible to a violent person whose whereabouts were not immediately apparent could pose a threat); United States v. Timpani, 665 F.2d 1, 5 n. 8 (1st Cir.1981) (noting that seizure of guns and storage in agent’s vehicle was reasonable because serious crimes were under investigation and the agents’ safety was at stake); United States v. Malachesen, 597 F.2d 1232, 1234 (8th Cir.1979) (holding that the temporary seizure and unloading of a handgun whose incriminating nature was not immediately apparent was a “reasonable precaution to assure ... safety”). The shotgun was properly seized on a temporary basis to secure it so that the officers could investigate the domestic disturbance call. Once seized for this purpose, the incriminating nature of the weapon became apparent and it" }, { "docid": "1047775", "title": "", "text": "inadvertently discovered a weapon. During the course of this search the officers were informed defendant had a prior felony conviction. This court held that while the incriminating nature of the gun was not immediately apparent, the seizure, unloading and retention of the gun was “a reasonable precaution to assure the safety of all persons on the premises during the search.” Id. at 1234; see Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977); United States v. Clay, 640 F.2d 157, 160 (8th Cir.1981). We further determined that when the officers learned of defendant’s prior conviction “the temporarily seized handgun became contraband and subject to seizure as an illegal weapon possessed by a felon.” Malachesen, 597 F.2d at 1235. Here, in their search, in addition to the weapon, the officers discovered a letter from the state probation office addressed to Robinson. This letter reasonably led the officers to believe that the appellant had a prior conviction and that he was a felon in possession of a firearm. We conclude that this weapon temporarily held for safety reasons became evidence of another crime and was both properly seized and retained. Accordingly, the judgment of the district court in all respects is affirmed. . The Honorable Edward L. Filippine, United States District Judge, Eastern District of Missou-. . Knowing possession of the weapon is the only element being challenged as the other elements were not argued on appeal. . Officer Berry's affidavit in support of the warrant stated that he had known informant for ten years and that in the past his/her information had resulted in the seizure of controlled substances and the arrest of at least four persons." }, { "docid": "5551931", "title": "", "text": "even its intentional use by Malachesen’s roommate or a cohort. Common sense dictates that the weapon should be unloaded and, at least temporarily, kept in a safe place. When the officers learned that Malachesen had a prior conviction, the temporarily-seized handgun became contraband and subject to seizure as an illegal weapon possessed by a felon. Accordingly, we find no violation of Malachesen’s fourth amendment rights. We reverse the order of the district court suppressing the introduction into evidence of the handgun, and we remand this case for further proceedings. . Officer Moeller testified that safety considerations motivated the seizure of the gun. Moreover, he stated that standard police procedure directed officers to secure firearms discovered in the course of a search. . The investigating officers examined and recorded the serial numbers of hand tools, motorcycles, firearms, a television, stereo equipment, and other shop equipment and personal effects observed in the course of searching Clark’s premises. United States v. Clark, 531 F.2d 928, 931 (8th Cir. 1976). . Although he did not challenge the search leading to the discovery of the handgun as illegal, Malachesen characterizes the investigating officers’ temporary possession of the weapon as an unlawful seizure. . The bullethole in the wall near the discovered gun suggests that the weapon may have been accidentally fired on a previous occasion. . Coolidge v. New Hampshire, supra, 403 U.S. 443, 472, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), appears to suggest that the plain view exception to the warrant requirement may permit the seizure of “objects dangerous in themselves.” We believe that a cocked and loaded gun should be considered dangerous in itself." }, { "docid": "5551926", "title": "", "text": "BRIGHT, Circuit Judge. This interlocutory appeal by the Government, from an order of the district court suppressing the introduction into evidence of a handgun in the prosecution of John Charles Malachesen, presents the following issue: During the course of an otherwise lawful search, may the police constitutionally seize a cocked and loaded handgun for safety considerations? The Government indicted Malachesen, a convicted felon, for knowingly and intentionally receiving a firearm which had been transported in interstate commerce, in violation of 18 U.S.C. § 922(h) (1976). Following a hearing, the United States Magistrate recommended that Malachesen’s motion to suppress the firearm be denied. On de novo review, the district court disagreed with the magistrate and granted the motion to suppress. This appeal followed. Upon examination of the record, we hold that the officers properly seized the firearm in question, and we reverse the suppression order of the district court. On December 29, 1977, a Minnesota state judge issued a warrant to state police officers authorizing a search of the home of John Charles Malachesen and adjacent property for a 1973 Polaris snowmobile and Colombian marijuana. During the course of the search, Officer James Moeller discovered a cocked and apparently loaded .22 caliber revolver beneath the mattress of a bed and noticed a bullethole in the bedroom wall near the bed. Officer Moeller picked up the weapon, uncocked the hammer, and unloaded it. He then turned the pistol over to the inventory officer on the premises. Although Malachesen was not at home during the search, his roommate was present. While the the search for the marijuana continued, with the firearm in the possession of the inventory officer, Officer Moeller learned from two detectives, also searching the premises, that Malachesen had a prior felony conviction. When Malachesen returned home, he admitted under Moeller’s questioning, ownership of the weapon and his prior felony conviction. This information and the seized handgun served as the foundation for the present indictment against Malachesen for violation of 18 U.S.C. § 922(h). In granting the motion to suppress, the district court stressed that officer Moeller seized the handgun before" }, { "docid": "20794709", "title": "", "text": "Tyrone Harris, had an outstanding warrant for his arrest in Minnesota, so the officers arrested him. After Harris’s motions to suppress the firearm were denied, Harris entered a conditional plea of guilty for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e)(1), \"reserving his suppression arguments for appeal. Harris now appeals the district court’s denial of his motions to suppress the firearm. Harris argues that the police officers violated his Fourth Amendment rights because they did not have probable cause to believe that he was committing a crime nor reasonable suspicion of criminal activity. Accordingly, the police officers had no right to remove the handgun from Harris’s pocket and place him in handcuffs. The Government argues that the police had a reasonable suspicion that Harris was violating several of Missouri’s gun laws and contends that, in any event, the police acted reasonably pursuant to the community caretaker doctrine. We review the district court’s denial of Harris’s suppression motions de novo and the factual determinations underlying the district court’s decision for clear error. See United States v. Orozco, 700 F.3d 1176, 1178 (8th Cir.2012). Applying this standard of review, we hold that the officers acted reasonably in their response to the emergency they faced, and accordingly, we affirm the district court’s denial of Harris’s motions to suppress. II. The ultimate touchstone of the Fourth Amendment is “reasonableness.” Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). Generally, searches and seizures conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable, “ ‘subject only to a few specifically established and well-delineated exceptions.’ ” United States v. Taylor, 636 F.3d 461, 464 (8th Cir.2011) (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)). The well-known exception upon which the Government initially relies, first recognized in Terry v. Ohio, permits an officer to stop and frisk an individual if the officer has a reasonable suspicion that “criminal activity may be afoot and that the persons with whom" }, { "docid": "5541504", "title": "", "text": "and the denial of the suppression motion de novo. Id.; United States v. Orozco, 700 1178 (8th Cir.2012). F.3d 1176, The Fourth Amendment provides, in relevant part, “[t]he right of the people to be secure in their .., houses ... against unreasonable searches and seizures, shall not be violated.” “At the Amendment’s Very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable government intrusion.’ ” Florida v. Jardines, — U.S. -, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013) (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961)). While it is a basic principle of the Fourth Amendment that warrantless searches and seizures inside a home are presumptively unreasonable, the ultimate touchstone of the Fourth Amendment is “reasonableness,” and it follows that the warrant requirement is subject to certain exceptions. Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (citing Flippo v. West Virginia, 528 U.S. 11, 13, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999) (per curiam)). One such exception applies when police officers engage in a community care-taking function. Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). The Supreme Court has long described the “community caretaking functions” of law enforcement as activities^ that are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. This Circuit has recognized that such a “community caretaker” classification may justify noninvestigatory searches and seizures in certain limited situations. United States v. Harris, 747 F.3d 1013, 1017 (8th Cir.2014) (compiling cases that have applied the community caretaker doctrine to noninvestigatory seizures). Community caretaking functions are performed by law enforcement to “help those in danger.” United States v. Quezada, 448 F.3d 1005, 1007 (8th Cir.2006) (citing Cady, 413 U.S. at 441, 93 S.Ct. 2523). “A police officer may enter a residence without a warrant as a community caretaker where the officer has a reasonable belief that an emergency exists requiring his or her attention.” Id. (citing" }, { "docid": "1047774", "title": "", "text": "seized under the plain view exception to the warrant requirement. For an item to be legally seized under this exception, (1) the initial intrusion must have been proper; (2) the discovery of the evidence must have been inadvertent; and (3) the incriminating nature of the evidence must have been “immediately apparent.” United States v. Robinson, 720 F.2d 18, 19 (8th Cir.1983); United States v. Johnson, 707 F.2d 317, 321 (8th Cir.1983). The first two elements may be dealt with summarily. As we have stated, the initial intrusion was proper because the officers were in the apartment under a properly issued warrant, and the facts show the discovery of the weapon was inadvertent in that the officers did not expect to find it. As to the third element, the situation here is very similar to that in the case of United States v. Malachesen, 597 F.2d 1232 (8th Cir.), cert. denied, 444 U.S. 902, 100 S.Ct. 214, 62 L.Ed.2d 139 (1979). In Malachesen officers were searching defendant’s apartment for drugs under a properly issued warrant and inadvertently discovered a weapon. During the course of this search the officers were informed defendant had a prior felony conviction. This court held that while the incriminating nature of the gun was not immediately apparent, the seizure, unloading and retention of the gun was “a reasonable precaution to assure the safety of all persons on the premises during the search.” Id. at 1234; see Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977); United States v. Clay, 640 F.2d 157, 160 (8th Cir.1981). We further determined that when the officers learned of defendant’s prior conviction “the temporarily seized handgun became contraband and subject to seizure as an illegal weapon possessed by a felon.” Malachesen, 597 F.2d at 1235. Here, in their search, in addition to the weapon, the officers discovered a letter from the state probation office addressed to Robinson. This letter reasonably led the officers to believe that the appellant had a prior conviction and that he was a felon in possession of a firearm. We conclude that" }, { "docid": "11780129", "title": "", "text": "which the object can be plainly viewed; (2) the incriminating character of the object is immediately apparent; and, (3) the officer has a lawful right of access to the object itself. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); see also Texas v. Brown, 460 U.S. 730, 741-42, 103 S.Ct. 1535, 75 L.Ed.2d 502 (holding that, “in the ordinary case,” “ ‘[t]he seizure of property in plain view ... is presumptively reasonable, assuming there is probable cause to associate the property with criminal activity.’ ”). The Supreme Court also has indicated that the plain view exception permits the warrantless seizure of “objects dangerous in themselves.” Coolidge v. New Hampshire, 403 U.S. 443, 472, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality); see also United States v. Malachesen, 597 F.2d 1232, 1234 n. 4 (8th Cir.1979) (observing same). The Sixth Circuit has twice approved of police seizure of a weapon that was not obvious contraband based on an officer’s reasonable belief that the weapon posed a threat to officer safety. United States v. Chapman interpreted Terry as permitting a police officer executing a search warrant to temporarily seize a weapon that was in plain view but not obvious contraband provided the seizure was justified by a legitimate concern for police safety. 549 F.2d 1075, 1079 (6th Cir.1977). In Chapman, the police secured and executed a search warrant for marijuana possession at a specific residence in Detroit. When police conducted the search, at least ten people were present in the house. In conducting the search, police discovered a loaded sawed-off shotgun under a couch and a rifle in plain view in an upstairs bedroom. The defendant claimed that under United States v. Gray, 484 F.2d 352 (6th Cir.1973), the police had illegally seized the weapons because at the time of the seizure the police did not have any knowledge that the weapons were contraband. Id. at 1078. With respect to the sawed-off shotgun, the court concluded that the defendant could not challenge the seizure of that weapon because it was obvious contraband. With respect to the" }, { "docid": "5551929", "title": "", "text": "the plain view exception to the warrant requirement, for the “incriminating nature” of the gun was not immediately apparent. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The district court reasoned that here, as in Clark, the handgun’s “incriminating nature” was not immediately apparent to the investigating officers. Because the weapon did not appear to be related in any way to the authorized object of the search, i. e., marijuana, the court held that the search and seizure of the gun could not be justified as a plain view exception to the warrant requirement and violated Malachesen’s fourth amendment rights. The court also determined that the officers lacked reasonable cause to fear for their physical safety and therefore rejected the Government’s attempt to justify the search and seizure of the weapon for reasons of safety. In our view, United States v. Clark, supra, does not apply to this case. In Clark, the extensive exploratory search exceeded the scope of the warrant authorizing a search for controlled substances. Unlike the events in Clark, the officers in the instant case accidentally discovered the handgun in the course of their authorized search for marijuana and a snowmobile. When he found the gun, Officer Moeller uncocked and unloaded it, pursuant to local standard police procedure, and delivered the weapon to the inventory officer. Clark does not address this type of temporary seizure, for limited safety purposes, of a loaded and cocked handgun discovered in the course of executing a search warrant. Although the' incriminating nature of the handgun may not have been immediately apparent to the investigating officers, its temporary seizure, unloading, and retention by a responsible officer (here the inventory officer) seems a reasonable precaution to assure the safety of all persons on the premises during the search. See United States v. Chapman, 549 F.2d 1075 (6th Cir. 1977). A loaded, cocked handgun poses a threat to anyone within its range of fire. Moreover, temporary seizure undercuts the chance of mishap — the accidental discharge of the handgun through mishandling by someone on the premises, or" }, { "docid": "3729993", "title": "", "text": "and used against officers or others should be unloaded, and at least temporarily, kept in a safe place. See, e.g., United States v. Bishop, 338 F.3d 623, 628-29 (6th Cir.2003) (holding that temporary seizure of a handgun in plain view was proper where the officer reasonably feared that leaving the gun accessible to a violent person whose whereabouts were not immediately apparent could pose a threat); United States v. Timpani, 665 F.2d 1, 5 n. 8 (1st Cir.1981) (noting that seizure of guns and storage in agent’s vehicle was reasonable because serious crimes were under investigation and the agents’ safety was at stake); United States v. Malachesen, 597 F.2d 1232, 1234 (8th Cir.1979) (holding that the temporary seizure and unloading of a handgun whose incriminating nature was not immediately apparent was a “reasonable precaution to assure ... safety”). The shotgun was properly seized on a temporary basis to secure it so that the officers could investigate the domestic disturbance call. Once seized for this purpose, the incriminating nature of the weapon became apparent and it was then subject to permanent seizure as contraband. Ill For the foregoing reasons, we AFFIRM Rodriguez’s conviction for possession of a an unregistered firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). . Rodriguez also disputes the district court's finding that even without a reasonable suspicion, the officers could perform the protective sweep simply on the basis that they were aware of the alleged presence of a firearm. Because we find that the second prong of the protective sweep doctrine was met here, we need not consider this argument. . We do not hold that any seizure of a weapon whose incriminating nature is not immediately apparent is reasonable. Rather, whereas here, the officers were conducting a legitimate protective sweep for other persons potentially within the trailer, we think that the temporary seizure to secure the weapon was reasonable so as to allow the officers to safely conduct their investigation. . Rodriguez argues that because the shotgun was unloaded, there was no safety reason for the officers to secure it —" } ]

[ { "docid": "22797968", "title": "", "text": "judgment for appellants. On appeal, the en banc Court of Appeals for the District of Columbia Circuit reversed, holding that § 501(c)(3) does not violate the First Amendment but does violate the Fifth Amendment. 219 U. S. App. D. C. 117, 676 F. 2d 715 (1982). Appellants appealed pursuant to 28 U. S. C. §1252, and TWR cross- appealed. We noted probable jurisdiction of the appeal, 459 U. S. 819 (1982). TWR was formed to take over the operations of two other nonprofit corporations. One, Taxation With Representation Fund, was organized to promote TWR’s goals by publishing a journal and engaging in litigation; it had tax-exempt status under § 501(c)(3). The other, Taxation With Representation, attempted to promote the same goals by influencing legislation; it liad tax-exempt status under § 501(c)(4). Neither predecessor organization was required to pay federal income taxes. For purposes of our analysis, there are two principal differences between § 501(c)(3) organizations and § 501(c)(4) organizations. Taxpayers who contribute to § 501(c)(3) organizations are permitted by § 170(c)(2) to deduct the amount of their contributions on their federal income tax returns, while contributions to § 501(c)(4) organizations are not deductible. Section 501(c)(4) organizations, but not § 501(c)(3) organizations, are permitted to engage in substantial lobbying to advance their exempt purposes. In these cases, TWR is attacking the prohibition against substantial lobbying in § 501(c)(3) because it wants to use tax- deductible contributions to support substantial lobbying activities. To evaluate TWR’s claims, it is necessary to understand the effect of the tax-exemption system enacted by Congress. Both tax exemptions and tax deductibility are a form of subsidy that is administered through the tax system. A tax exemption has much the same effect as a cash grant to the organization of the amount of tax it would have to pay on its income. Deductible contributions are similar to cash grants of the amount of a portion of the individual’s contributions. The system Congress has enacted provides this kind of subsidy to nonprofit civic welfare organizations generally, and an additional subsidy to those charitable organizations that do not engage in" } ]

[ { "docid": "22224610", "title": "", "text": "S. 540 (1983), the Government argues that by prohibiting noncommercial educational stations that receive CPB grants from editorializing, Congress has, in the proper exercise of its spending power, simply determined that it “will not subsidize public broadcasting station editorials. ” Brief for Appellant 42. In Taxation With Representation, the Court found that Congress could, in the exercise of its spending power, reasonably refuse to subsidize the lobbying activities of tax-exempt charitable organizations by prohibiting such organizations from using tax-deductible contributions to support their lobbying efforts. In so holding, however, we explained that such organizations remained free “to receive [tax-]deductible contributions to support nonlobbying activities].” 461 U. S., at 545. Thus, a charitable organization could create, under § 501(c)(3) of the Internal Revenue Code, 26 U. S. C. § 501(c)(3), an affiliate to conduct its nonlobbying activities using tax-deductible contributions, and, at the same time, establish, under § 501(c)(4), a separate affiliate to pursue its lobbying efforts without such contributions. 461 U. S., at 544; see also id., at 552-553 (Blackmun, J., concurring). Given that statutory alternative, the Court concluded that “Congress has not infringed any First Amendment rights or regulated any First Amendment activity; [it] has simply chosen not to pay for TWR’s lobbying.” Id., at 546. In this case, however, unlike the situation faced by the charitable organization in Taxation With Representation, a noncommercial educational station that receives only 1% of its overall income from CPB grants is barred absolutely from all editorializing. Therefore, in contrast to the appellee in Taxation With Representation, such a station is not able to segregate its activities according to the source of its funding. The station has no way of limiting the use of its federal funds to all noneditorializing activities, and, more importantly, it is barred from using even wholly private funds to finance its editorial activity. Of course, if Congress were to adopt a revised version of § 399 that permitted noncommercial educational broadcasting stations to establish “affiliate” organizations which could then use the station’s facilities to editorialize with nonfederal funds, such a statutory mechanism would plainly be valid under the" }, { "docid": "17287151", "title": "", "text": "78 S.Ct. 1332 (citation omitted). Therefore, the Court concluded that the fact that “a tax exemption is a ‘privilege’ or ‘bounty ” does not mean that “its denial may not infringe speech.” Id. at 518, 78 S.Ct. 1332. The Court explained that in Speiser, “the denial of a tax exemption for engaging in certain speech necessarily will have the effect of coercing the claimants to refrain from the proscribed speech. The denial is ‘frankly aimed at the suppression of dangerous ideas.’ ” Id. at 519, 78 S.Ct. 1332 (quoting Am. Commc’ns Ass’n, C.I.O. v. Douds, 339 U.S. 382, 402, 70 S.Ct. 674, 94 L.Ed. 925 (1950)). Having characterized the condition as tantamount to a fine, the Court struck it down pursuant to the Due Process Clause of the Fourteenth Amendment for lacking sufficient procedural protections. Id. at 520-29, 78 S.Ct. 1332. In Taxation With Representation, the Supreme Court was called on to apply Speiser in the context of a condition on nonprofit groups’ ability to retain tax-favored status. Specifically, the Court addressed whether Congress’s prohibition on lobbying by nonprofit organizations that were allowed to receive tax-deductible contributions amounted to an unconstitutional condition on the organizations’ ability to receive tax-deductible money. See Taxation With Representation, 461 U.S. at 545, 103 S.Ct. 1997. While lobbying is clearly protected by the First Amendment, see E.R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 137-38, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), the Court disagreed with the argument that the government had violated nonprofit groups’ First Amendment rights by declining to “pay for the lobbying out of public monies,” Taxation With Representation, 461 U.S. at 545, 103 S.Ct. 1997. The Court “reject[ed] the ‘notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.’ ” Id. at 546, 103 S.Ct. 1997 (quoting Cammarano v. United States, 358 U.S. 498, 515, 79 S.Ct. 524, 3 L.Ed.2d 462 (1959) (Douglas, J., concurring)). The Court reasoned that the condition was valid because Congress did “not deny [plaintiff Taxation With Representation (“TWR”) ] the right to receive deductible contributions to" }, { "docid": "22797970", "title": "", "text": "substantial lobbying. In short, Congress chose not to subsidize lobbying as extensively as it chose to subsidize other activities that nonprofit organizations undertake to promote the public welfare. It appears that TWR could still qualify for a tax exemption under § 501(c)(4). It also appears that TWR can obtain tax-deductible contributions for its nonlobbying activity by returning to the dual structure it used in the past, with a § 501(c)(3) organization for nonlobbying activities and a § 501(c)(4) organization for lobbying. TWR would, of course, have to ensure that the § 501(c)(3) organization did not subsidize the § 501(c)(4) organization; otherwise, public funds might be spent on an activity Congress chose not to subsidize. TWR contends that Congress’ decision not to subsidize its lobbying violates the First Amendment. It claims, relying on Speiser v. Randall, 357 U. S. 513 (1958), that the prohibition against substantial lobbying by § 501(c)(3) organizations imposes an “unconstitutional condition” on the receipt of tax-deductible contributions. In Speiser, California established a rule requiring anyone who sought to take advantage of a property tax exemption to sign a declaration stating that he did not advocate the forcible overthrow of the Government of the United States. This Court stated that “[t]o deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech.” Id., at 518. TWR is certainly correct when it states that we have held that the government may not deny a benefit to a person because he exercises a constitutional right. See Perry v. Sindermann, 408 U. S. 593, 597 (1972). But TWR is just as certainly incorrect when it claims that this case fits the Speiser-Perry model. The Code does not deny TWR the right to receive deductible contributions to support its non-lobbying activity, nor does it deny TWR any independent benefit on account of its intention to lobby. Congress has merely refused to pay for the lobbying out of public moneys. This Court has never held that Congress must grant a benefit such as TWR claims here to a person who wishes to exercise" }, { "docid": "2308321", "title": "", "text": "state subsidizes speech. Nothing in the Constitutior requires the government to subsidize all speech equally. A government subsidy \"that discriminates among speakers does not implicate the First Amendment unless it discriminates on the basis of ideas.' Leathers v. Medlock, 499 U.S. 439, 450, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991); see also Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 587-88, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (noting legislatures “may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech ... at stake” and that such funding is not “discrimination] on the basis of viewpoint [but] ... merely ... funding] one activity to the exclusion of the other” (citation omitted)). As Regan explained, legislative “selection of particular entities or persons for entitlement to this sort of largesse is obviously a matter of policy and discretion not [ordinarily] open to judicial review[.]” 461 U.S. at 549, 103 S.Ct. 1997 (internal quotations omitted). Indeed, the speech subsidy upheld in Regan discriminated on the basis of speaker—veterans’ groups who engaged in lobbying could claim section 501(c)(3) status but other lobbying groups could not. Id. at 548-49, 103 S.Ct. 1997; see also Campbell, 883 F.2d at 1255-56 (no First Amendment implications to statute that discriminated on the basis of speaker in authorizing payroll deduction for some public employee organizations but not others). Thus, that the state gave one category of public employees the benefit of payroll dues deduction does not run afoul of the First Amendment. Unable to distinguish Act 10 from Ysur-sa and the Court’s other speech subsidy cases, the Unions also liken the state’s payroll deduction system to a nonpublic forum. See, e.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 830, 834, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (applying nonpublic forum analysis to a student activities fund used to reimburse the expressive activity of student organizations, noting that the fund was a “forum more in a metaphysical than a spatial or geographic sense”). But applying Rosenberger to this case would require us to ignore Ysursa, where the" }, { "docid": "17287156", "title": "", "text": "S.Ct. 1997 (Blackmun, J., concurring). Justice Blackmun therefore urged that this restriction would in fact “den[y] a signifi cant benefit to organizations choosing to exercise their constitutional rights” and, as a result, would be an unconstitutional condition. Id. at 552 & n. * 103 S.Ct. 1997. As support for this conclusion, Justice Blackmun cited, among other opinions, Justice Douglas’s concurrence in Cammarano, which noted that while Congress’s denial of a business-expense deduction for lobbying activities was constitutional, the denial of all business deductions for a taxpayer who lobbied, “would be placing a penalty on the exercise of First Amendment rights,” Cammarmo, 358 U.S. at 515, 79 S.Ct. 524 (Douglas, J., concurring) (cited in Taxation With Representation, 461 U.S. at 552 n. *, 103 S.Ct. 1997 (Black-mun, J., concurring)). Justice Blackmun’s Taxation With Representation concurrence went on to explain that the lobbying restriction in that case was saved by the fact that a nonprofit organization could create an affiliate to “make known its views on legislation ... without losing tax benefits for its nonlobbying activities.” Taxation With Representation, 461 U.S. at 553, 103 S.Ct. 1997. Because of this dual structure, Justice Blackmun explained that “the Court finds that Congress’ purpose in imposing the lobbying restriction was merely to ensure that ‘no tax-deductible contributions are used to pay for substantial lobbying.’ ” Id. at 553, 103 S.Ct. 1997. Taxation With Representation therefore expanded in two ways on SpeiseVs initial discussion of the “unconstitutional conditions” doctrine as it applies to conditions on government benefits or subsidies that affect First Amendment rights. First, the Court noted that a funding condition would be unconstitutional if it operated as a coercive penalty on the exercise of First Amendment rights. The Court suggested two ways that a government condition could do this: (1) if it restricted a recipient’s First Amendment speech outside of the scope of the recipient’s participation in the government program (for example, by restricting TWR from lobbying even with non-deductible contributions), or (2) if it denied government benefits to which the recipient would otherwise be entitled and that are independent from those provided by" }, { "docid": "1359028", "title": "", "text": "707 (8th Cir.2000) (participation in adopt-a-highway program); Hyland v. Wonder, 972 F.2d 1129, 1135-36 (9th Cir. 1992) (volunteer position). As to the second basis for the district court’s decision, the government acknowledges, as it must, that registered lobbyists are protected by the First Amendment right to petition. See Liberty Lobby, Inc. v. Pearson, 390 F.2d 489, 491 (D.C.Cir.1968) (holding lobbying is protected by the right to petition government); see also Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781, 801, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (holding that First Amendment rights are “not lost merely because compensation is received”). Its disagreement with Appellants centers on whether the ban infringes this right. For its part, the district court concluded that the ban “does not curtail protected activity,” reasoning that “the statutory duty to register is not directly correlated with the amount, nature, or content of any lobbyist’s protected activity.” Autor, 892 F.Supp.2d at 281-82. Again, the government does not defend the district court’s reasoning. Instead, it argues that the ban imposes no unconstitutional burden, citing in support Lyng v. International Union, 485 U.S. 360, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988), one of a series of decisions holding that “when the government appropriates public funds to establish a program,” Rust v. Sullivan, 500 U.S. 173, 194, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), its “decision not to [use program funds to] subsidize the exercise of a fundamental right does not infringe the right.” Lyng v. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, 485 U.S. 360, 368, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988) (quoting Regan v. Taxation with Representation of Washington, 461 U.S. 540, 549, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983)) (internal quotation marks omitted). In Lyng, the Supreme Court held that the government could deny food stamp increases to striking workers without running afoul of the First Amendment. Id. at 369-73, 108 S.Ct. 1184; see also Regan, 461 U.S. at 551, 103 S.Ct. 1997 (upholding denial of tax exemption). But unlike in Lyng and the other subsidy cases, in" }, { "docid": "19394426", "title": "", "text": "(1977) ). \"At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.\" Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ; see Knox v. Service Employees, 567 U.S. ----, ---- - ----, 132 S.Ct. 2277, 2288, 183 L.Ed.2d 281 (2012) (\"The government may not ... compel the endorsement of ideas that it approves.\"). Were it enacted as a direct regulation of speech, the Policy Requirement would plainly violate the First Amendment. The question is whether the Government may nonetheless impose that requirement as a condition on the receipt of federal funds. A The Spending Clause of the Federal Constitution grants Congress the power \"[t]o lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.\" Art. I, § 8, cl. 1. The Clause provides Congress broad discretion to tax and spend for the \"general Welfare,\" including by funding particular state or private programs or activities. That power includes the authority to impose limits on the use of such funds to ensure they are used in the manner Congress intends. Rust v. Sullivan, 500 U.S. 173, 195, n. 4, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (\"Congress' power to allocate funds for public purposes includes an ancillary power to ensure that those funds are properly applied to the prescribed use.\"). As a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds. This remains true when the objection is that a condition may affect the recipient's exercise of its First Amendment rights. See, e.g., United States v. American Library Assn., Inc., 539 U.S. 194, 212, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003) (plurality opinion) (rejecting a claim by public libraries that conditioning funds for Internet access on the libraries' installing filtering software violated their First Amendment rights, explaining that \"[t]o the extent that libraries wish to offer" }, { "docid": "738864", "title": "", "text": "points out, it has also been held that while the government may not lawfully restrict freedom of speech, it may fix the terms on which it distributes money. This was essentially the Court’s reasoning in upholding the provision of the Hatch Act which restricts certain types of political activity, and thus protected First Amendment activity, of state and local employees in programs receiving federal financial support. Oklahoma v. United States Civil Service Commission, 330 U.S. 127, 143, 67 S.Ct. 544, 553, 91 L.Ed. 794 (1947); compare FCC v. League of Women Voters, — U.S. —, 104 S.Ct. 3106, 3131 and 3131 n. *, 82 L.Ed.2d 278 (Rehnquist, J., dissenting) with id., 104 S.Ct. at 3128-29 n. 27. It has further been held that the government has no obligation to subsidize the exercise of free speech. The ease most heavily relied upon by the government in this regard is Regan v. Taxation With Representation, 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983). Plaintiff in Taxation was an organization formed to promote its members’ views of proper federal tax policy. To advance its ideas, plaintiff distributed literature, engaged in litigation, and attempted directly to influence legislation by contacting legislators, i.e., by lobbying. The Internal Revenue Code denies charitable deduction status to taxpayer contributions to organizations which engage in lobbying. Citing the unconstitutional condition cases, plaintiff claimed that the denial of this governmental benefit solely because it engaged in a form of protected expression, lobbying, violated the First Amendment. Analogizing a tax deduction to a cash grant, the Supreme Court reasoned that Congress did not deny lobbying organizations a benefit but instead refused them a subsidy. It held that Congress has no obligation to subsidize all forms of speech equally. The instant case, it is claimed, falls at the seam between two accepted rights: the First Amendment right of individuals to express themselves free of governmental control or retribution, and the right of government not to pay for things for which it would prefer not to pay. This is because both parties appear to view the question before me as whether" }, { "docid": "527369", "title": "", "text": "government cannot make expenditures, and therefore cannot act, other than by appropriation”) (emphasis added). In the end, almost any restriction of prisoners’ constitutional rights can be recast as a ban on funding for those rights. But as this court observed in Amatel, in prisons, “[w]here the government absolutely monopolizes the means of speech or controls a bottleneck, ... a refusal to fund functions the same as an outright ban.” 156 F.3d at 194 n. 1. That the government “monopolizes” certain “means of speech” in prisons is what sets this case apart from Regan v. Taxation With Representation, 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983). See Maj. Op. at 233-34. In Regan, the Supreme Court upheld a restriction on lobbying activities for tax-exempt charities on the ground that “a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.” Id. at 549, 103 S.Ct. at 2003. Describing the governing principle as “simple,” the Court explained that “ ‘although government may not place obstacles in the path of a [person’s] exercise of ... freedom of [speech], it need not remove those not of its own creation.’ ” Id. at 549-50, 103 S.Ct. at 2003 (quoting Harris v. McRae, 448 U.S. 297, 316, 100 S.Ct. 2671, 2687-88, 65 L.Ed.2d 784 (1980)). In other words, when the government denies tax-exempt status to organizations that engage in lobbying, those organizations remain free to continue their lobbying activities — the First Amendment expression in question. See Taxation With Representation, 461 U.S. at 545, 103 S.Ct. at 2000-01. Similarly, when the government denies tax deductions for lobbying activities, taxpayers remain free to engage in political advocacy, see Cammarano v. United States, 358 U.S. 498, 79 S.Ct. 524, 3 L.Ed.2d 462 (1959), and when the government denies public funding to candidates for public office, those candidates remain free to seek election, see Buckley v. Valeo, 424 U.S. 1, 90-107, 96 S.Ct. 612, 668-77, 46 L.Ed.2d 659 (1976) (per curiam). Even in the prison context, if the government denies federal funds for" }, { "docid": "19765689", "title": "", "text": "a California law which required persons to swear an oath that they did not advocate for the overthrow of the government of the United States or the State of California in order to receive a tax exemption. Speiser v. Randall, 357 U.S. 513, 516, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958). In doing so, the Court held that \"[t]o deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech,” which \"necessarily will have the effect of coercing the claimants to refrain from the proscribed speech.” Id. at 518, 519, 78 S.Ct. 1332. The Court added that \"when the constitutional right to speak is sought to be deterred by a State's general taxing program due process demands that the speech be unencumbered until the State comes forward with sufficient proof to justify its inhibition.” Id. at 528-29, 78 S.Ct. 1332. . See, e.g., Barton v. Summers, 293 F.3d 944, 951 (6th Cir.2002) (holding that an attempt to force the State to make a particular allocation of Medicaid funds despite congressional authorization allowing the State considerable discretion amounted to an effort to obtain money damages impermissible under Coeur d’Alene). . Given the 2005 amendments, however, it now appears that Oklahoma law might permit a license plate expressing support for — and even funding — abortion-related activities. See supra at 1241. . See Rust, 500 U.S. at 198-99, 111 S.Ct. 1759 (upholding government's right to issue regulations which required recipients of grants to engage in abortion-related activity separately from activity receiving federal funding); see also Regan v. Taxation With Representation of Wash., 461 U.S. 540, 545, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983) (holding that Congress could exercise its spending power to prohibit tax-exempt organizations from lobbying because organizations were free to create separate affiliates which could receive private funds to support lobbying efforts); accord United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003) (declining to decide unconstitutional conditions argument but reiterating Rust’s teaching that government may insist that public funds be spent for" }, { "docid": "17287152", "title": "", "text": "on lobbying by nonprofit organizations that were allowed to receive tax-deductible contributions amounted to an unconstitutional condition on the organizations’ ability to receive tax-deductible money. See Taxation With Representation, 461 U.S. at 545, 103 S.Ct. 1997. While lobbying is clearly protected by the First Amendment, see E.R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 137-38, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), the Court disagreed with the argument that the government had violated nonprofit groups’ First Amendment rights by declining to “pay for the lobbying out of public monies,” Taxation With Representation, 461 U.S. at 545, 103 S.Ct. 1997. The Court “reject[ed] the ‘notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.’ ” Id. at 546, 103 S.Ct. 1997 (quoting Cammarano v. United States, 358 U.S. 498, 515, 79 S.Ct. 524, 3 L.Ed.2d 462 (1959) (Douglas, J., concurring)). The Court reasoned that the condition was valid because Congress did “not deny [plaintiff Taxation With Representation (“TWR”) ] the right to receive deductible contributions to support its non-lobbying activity, nor does it deny TWR any independent benefit on account of its intention to lobby.” Id. Congress had not denied TWR the right to receive tax-deductible contributions to support non-lobbying activities because, despite Congress’s restriction, the law allowed TWR to use a dual structure whereby TWR could continue to receive tax-deductible contributions to conduct non-lobbying activities while an affiliate organization could conduct any lobbying activities with non-deductible funds. Id. at 544, 103 S.Ct. 1997. The Supreme Court explained that, therefore, “Congress has not infringed any First Amendment rights or regulated any First Amendment activity[;] Congress has simply chosen not to pay for TWR’s lobbying.” Id. at 546, 103 S.Ct. 1997. The Supreme Court also rejected the claim that Congress had violated TWR’s constitutional rights by continuing to allow tax-exempt veterans’ organizations to lobby with tax-deductible contributions. Id. at 546^17, 103 S.Ct. 1997. Congress was free to “select[ ] ... particular entities or persons for entitlement to this sort of largesse [because the decision wa]s obviously a matter of policy and discretion" }, { "docid": "17287157", "title": "", "text": "With Representation, 461 U.S. at 553, 103 S.Ct. 1997. Because of this dual structure, Justice Blackmun explained that “the Court finds that Congress’ purpose in imposing the lobbying restriction was merely to ensure that ‘no tax-deductible contributions are used to pay for substantial lobbying.’ ” Id. at 553, 103 S.Ct. 1997. Taxation With Representation therefore expanded in two ways on SpeiseVs initial discussion of the “unconstitutional conditions” doctrine as it applies to conditions on government benefits or subsidies that affect First Amendment rights. First, the Court noted that a funding condition would be unconstitutional if it operated as a coercive penalty on the exercise of First Amendment rights. The Court suggested two ways that a government condition could do this: (1) if it restricted a recipient’s First Amendment speech outside of the scope of the recipient’s participation in the government program (for example, by restricting TWR from lobbying even with non-deductible contributions), or (2) if it denied government benefits to which the recipient would otherwise be entitled and that are independent from those provided by the government program at issue (for example, by denying a property tax exemption for failure to take a loyalty oath). See id. at 545, 103 S.Ct. 1997. Second, Taxation With Representation cautioned that when the purpose of a condition is not to define the boundaries of federal spending, but rather to suppress certain viewpoints, the condition may be unconstitutional. See id. at 548,103 S.Ct. 1997. It is either as a coercive penalty or as viewpoint suppression, then, that the denial of a government benefit may “infringe [a person’s] constitutionally protected ... freedom of speech even if he has no entitlement to that benefit,” FAIR, 547 U.S. at 59, 126 S.Ct. 1297 (internal quotation marks omitted). In the following two sections, I first address cases analyzing funding conditions as penalties on speech and then turn to cases discussing funding conditions alleged to impermissibly discriminate on the basis of viewpoint. 1 The term following its Taxation With Representation decision, the Supreme Court decided FCC v. League of Women Voters, 468 U.S. 364, 104 S.Ct. 3106, 82 L.Ed.2d" }, { "docid": "22731587", "title": "", "text": "Similarly, in Regan we held that Congress could, in the exercise of its spending power, reasonably refuse to subsidize the lobbying activities of tax-exempt charitable organizations by prohibiting such organizations from using tax-deductible contributions to support their lobbying efforts. In so holding, we explained that such organizations remained free “to receive deductible contributions to support . . . nonlobby-ing activities].” 461 U. S., at 546. Thus, a charitable organization could create, under § 501(c)(3) of the Internal Revenue Code of 1954, 26 U. S. C. § 501(c)(3), an affiliate to conduct its nonlobbying activities using tax-deductible contributions, and at the same time establish, under §501 (c)(4), a separate affiliate to pursue itsvlobbying efforts without such contributions. 461 U. S., at 544. Given that alternative, the Court concluded that “Congress has not infringed any First Amendment rights or regulated any First Amendment activity[; it] has simply chosen not to pay for [appel-lee’s] lobbying.” Id., at 546. We also noted that appellee “would, of course, have to ensure that the § 501(c)(3) organization did not subsidize the § 501(c)(4) organization; otherwise, public funds might be spent on an activity Congress chose not to subsidize.” Id., at 544. The condition that federal funds will be used only to further the purposes of a grant does not violate constitutional rights. “Congress could, for example, grant funds to an organization dedicated to combating teenage drug abuse, but condition the grant by providing that none of the money received from Congress should be used to lobby state legislatures.” See id., at 548. By requiring that the Title X grantee engage in abortion-related activity separately from activity receiving federal funding, Congress has, consistent with our teachings in League of Women Voters and Regan, not denied it the right to engage in abortion-related activities. Congress has merely refused to fund such activities out of the public fisc, and the Secretary has simply required a certain degree of separation from the Title X project in order to ensure the integrity of the federally funded program. The same principles apply to petitioners’ claim that the regulations abridge the free speech" }, { "docid": "9989563", "title": "", "text": "Internal Revenue Code, which provided that organizations engaged in lobbying could not receive tax-deductible contributions. See I.R.C. § 501(c)(3). TWR argued that § 501(c)(3) impermissibly conditioned the benefit of contribution deductibility on the relinquishment of the First Amendment right to lobby. See Taxation With Representation, 461 U.S. at 545, 103 S.Ct. 1997. Because this was not an instance where “Congress [had] discriminate[d] invidiously in its subsidies in such a way as to aim at the suppression of dangerous ideas,” the Court applied minimal scrutiny and upheld the law. Id. at 548, 103 S.Ct. 1997 (alteration and internal quotation marks omitted). Nevertheless, Justice Rehnquist’s majority opinion noted, and a concurring opinion relied upon, the fact that the I.R.C. allowed § 501(c)(3) organizations to establish financially independent but wholly controlled lobbying affiliates under I.R.C. § 501(c)(4) without compromising their eligibility for deductible contributions. See id. at 544, 103 S.Ct. 1997 (majority opinion); id. at 552-53, 103 S.Ct. 1997 (Blackmun, J., concurring) (concluding that § 501(c)(3) alone would be “constitutionally defective]”). The next Term, the Court invalidated a condition denying federal public broadcasting funds to public stations that engage in editorializing. See F.C.C. v. League of Women Voters, 468 U.S. 364, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984). The Court found that because a “noncommercial educational station that receives only 1% of its overall income” from the Corporation for Public Broadcasting (CPB) would be barred from editorializing, stations “ha[ve] no way of limiting the use of [their] federal funds to all noneditorializing activities, and, more importantly, [they are] barred from using even wholly private funds to finance editorial activity.” Id. at 400, 104 S.Ct. 3106. The Court emphasized that Congress could cure the statute by amending it to allow stations “to establish ‘affiliate’ organizations which could then use the station’s facilities to editorialize with nonfederal funds.” Id. Finally, in Rust, 500 U.S. 173, 111 S.Ct. 1759 (1991), recipients of family planning-funds under Title X of the Public Health Services Act challenged regulations prohibiting Title X recipients from engaging in abortion counseling, referral, and any other activities advocating abortion as a means of family" }, { "docid": "17287108", "title": "", "text": "speech.”). As the Supreme Court recently reiterated, “the government may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech even if he has no entitlement to that benefit.” Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 59, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (“FAIR”) (internal quotation marks omitted). This tension between the breadth of Congress’s spending power on one hand and the principle that a condition on the receipt of federal funds may not infringe upon the recipient’s First Amendment rights on the other has given rise to three seminal Supreme Court decisions and several related cases from our Circuit. The Supreme Court cases are Regan v. Taxation With Representation, 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983), FCC v. League of Women Voters of California, 468 U.S. 364, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984), and Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). Our cases include a series of decisions concerning conditions imposed upon recipients of funding from the Legal Services Corporation (“LSC”): Velazquez v. Legal Services Corp., 164 F.3d 757 (2d Cir.1999) (“Velazquez I”), Legal Services Corp. v. Velazquez, 531 U.S. 533, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001) (“Velazquez II ”), and Brooklyn Legal Services Corp. v. Legal Services Corp., 462 F.3d 219 (2d Cir.2006) (“BLS ”). In Regan, plaintiff Taxation With Representation (“TWR”), a nonprofit lobbying corporation, challenged a statute that denied tax deductions to organizations that engaged in “substantial lobbying.” 461 U.S. at 541, 544, 103 S.Ct. 1997; see 26 U.S.C. § 501(c)(3). TWR argued that the prohibition against substantial lobbying by § 501(c)(3) organizations imposed an unconstitutional condition on the receipt of tax-deductible contributions. The Supreme Court disagreed, concluding that TWR remained free to receive deductible contributions to support its nonlobbying activity, and could create a separate, tax-exempt affiliate under § 501(c)(4) to pursue its lobbying activity. Id. at 544-45, 103 S.Ct. 1997. Given that alternative, the Court concluded that Congress “ha[d] not infringed any First Amendment rights or regulated any" }, { "docid": "19394427", "title": "", "text": "\"general Welfare,\" including by funding particular state or private programs or activities. That power includes the authority to impose limits on the use of such funds to ensure they are used in the manner Congress intends. Rust v. Sullivan, 500 U.S. 173, 195, n. 4, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (\"Congress' power to allocate funds for public purposes includes an ancillary power to ensure that those funds are properly applied to the prescribed use.\"). As a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds. This remains true when the objection is that a condition may affect the recipient's exercise of its First Amendment rights. See, e.g., United States v. American Library Assn., Inc., 539 U.S. 194, 212, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003) (plurality opinion) (rejecting a claim by public libraries that conditioning funds for Internet access on the libraries' installing filtering software violated their First Amendment rights, explaining that \"[t]o the extent that libraries wish to offer unfiltered access, they are free to do so without federal assistance\"); Regan v. Taxation With Representation of Wash., 461 U.S. 540, 546, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983) (dismissing \"the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State\" (internal quotation marks omitted)). At the same time, however, we have held that the Government \" 'may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech even if he has no entitlement to that benefit.' \" Forum for Academic and Institutional Rights, supra, at 59, 126 S.Ct. 1297 (quoting American Library Assn., supra, at 210, 123 S.Ct. 2297). In some cases, a funding condition can result in an unconstitutional burden on First Amendment rights. See Forum for Academic and Institutional Rights, supra, at 59, 126 S.Ct. 1297 (the First Amendment supplies \"a limit on Congress' ability to place conditions on the receipt of funds\"). The dissent thinks that can only be true when the condition is not" }, { "docid": "9989562", "title": "", "text": "in landlord-tenant disputes or in consumer fraud cases. The limitations of the 1996 Act are no more suspect simply because they are defined in terms of representations that are prohibited rather than those that are permitted. We find, therefore, that Congress was within its power to limit the scope of legal services available under the LSCA. 2. Unconstitutional Conditions. Plaintiffs’ second constitutional contention is that the program integrity rules contained in the final regulations unreasonably burden a grantee’s ability to use nonfederal funds to engage in restricted activity. Because each of the provisions of the 1996 Act burdens protected rights of association and speech, say plaintiffs, the undue burden of the final rules amounts to an unconstitutional condition on the receipt of LSC subsidies. Three Supreme Court cases provide the framework for evaluating plaintiffs’ unconstitutional conditions claim. In Regan v. Taxation With Representation, 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983), Taxation With Representation (TWR), a non-profit organization devoted to studying tax issues and lobbying for tax reform, challenged Section 501(c)(3) of the Internal Revenue Code, which provided that organizations engaged in lobbying could not receive tax-deductible contributions. See I.R.C. § 501(c)(3). TWR argued that § 501(c)(3) impermissibly conditioned the benefit of contribution deductibility on the relinquishment of the First Amendment right to lobby. See Taxation With Representation, 461 U.S. at 545, 103 S.Ct. 1997. Because this was not an instance where “Congress [had] discriminate[d] invidiously in its subsidies in such a way as to aim at the suppression of dangerous ideas,” the Court applied minimal scrutiny and upheld the law. Id. at 548, 103 S.Ct. 1997 (alteration and internal quotation marks omitted). Nevertheless, Justice Rehnquist’s majority opinion noted, and a concurring opinion relied upon, the fact that the I.R.C. allowed § 501(c)(3) organizations to establish financially independent but wholly controlled lobbying affiliates under I.R.C. § 501(c)(4) without compromising their eligibility for deductible contributions. See id. at 544, 103 S.Ct. 1997 (majority opinion); id. at 552-53, 103 S.Ct. 1997 (Blackmun, J., concurring) (concluding that § 501(c)(3) alone would be “constitutionally defective]”). The next Term, the Court invalidated a" }, { "docid": "17287109", "title": "", "text": "conditions imposed upon recipients of funding from the Legal Services Corporation (“LSC”): Velazquez v. Legal Services Corp., 164 F.3d 757 (2d Cir.1999) (“Velazquez I”), Legal Services Corp. v. Velazquez, 531 U.S. 533, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001) (“Velazquez II ”), and Brooklyn Legal Services Corp. v. Legal Services Corp., 462 F.3d 219 (2d Cir.2006) (“BLS ”). In Regan, plaintiff Taxation With Representation (“TWR”), a nonprofit lobbying corporation, challenged a statute that denied tax deductions to organizations that engaged in “substantial lobbying.” 461 U.S. at 541, 544, 103 S.Ct. 1997; see 26 U.S.C. § 501(c)(3). TWR argued that the prohibition against substantial lobbying by § 501(c)(3) organizations imposed an unconstitutional condition on the receipt of tax-deductible contributions. The Supreme Court disagreed, concluding that TWR remained free to receive deductible contributions to support its nonlobbying activity, and could create a separate, tax-exempt affiliate under § 501(c)(4) to pursue its lobbying activity. Id. at 544-45, 103 S.Ct. 1997. Given that alternative, the Court concluded that Congress “ha[d] not infringed any First Amendment rights or regulated any First Amendment activity,” but “simply chosen not to pay for TWR’s lobbying.” Id. at 546, 103 S.Ct. 1997. In a concurring opinion, Justice Blackmun emphasized “the saving effect of § 501(e)(4),” stating his view that “ § 501(c)(3) alone” would be “constitutionally] defective],” but that “[a] § 501(c)(3) organization’s right to speak is not infringed, because it is free to [lobby] through its § 501(c)(4) affiliate without losing tax benefits for its nonlobbying activities.” Id. at 552-53, 103 S.Ct. 1997 (Blackmun, J., concurring). The following term, the Supreme Court decided League of Women Voters, which involved a First Amendment challenge to a provision in the Public Broadcasting Act that prohibited stations receiving federal funds from “editorializing.” 468 U.S. at 367, 104 S.Ct. 3106. The Court struck down the provision, troubled by the fact that it “barred [a grantee] from using even wholly private funds to finance its editorial activity.” Id. at 400, 104 S.Ct. 3106 (stating that “unlike the situation faced by [TWR], a [station] that receives only 1% of its overall income from [federal]" }, { "docid": "17287160", "title": "", "text": "“such a statutory mechanism would plainly be valid under the reasoning of Taxation With Representation.” Id. The Court in League of Women Voters, therefore, as both the Taxation With Representation Court, 461 U.S. at 544-46, 103 S.Ct. 1997, and Justice Blackmun concurring in that case, id. at 552-53, 103 S.Ct. 1997, had suggested, concluded that a federal funding condition that not only limited the scope of the government program, but that also denied a recipient the right to spend private money in support of protected First Amendment activities, went too far. In Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), the Supreme Court applied the “unconstitutional conditions” doctrine in the context of a subsidy program that appropriated grants to healthcare organizations to operate family planning projects. Congress conditioned the grants with the restriction that none of the federal funds were to be “ ‘used in programs where abortion is a method of family planning,’ ” id. at 178, 111 S.Ct. 1759 (quoting 42 U.S.C. § 300a-6). The Supreme Court upheld agency regulations preventing federally funded projects from providing abortion counseling or “engaging in activities that ‘encourage, promote or advocate abortion as a method of family planning.’ ” Id. at 180, 111 S.Ct. 1759 (quoting 42 C.F.R. § 59.10(a) (1989)). The Court ruled that the regulations did “not force the ... grantee to give up abortion-related speech; they merely require[d] that the grantee keep such activities separate and distinct from [government-funded] activities.” Id. at 196, 111 S.Ct. 1759. When the government simply “insist[s] that public funds be spent for the purposes for which they were authorized,” “the [g]overnment is not denying a benefit to anyone” and there is no unconstitutional penalty on free speech. Id. The Court noted that the regulations in Rust continued to allow healthcare organizations to advocate for abortion; they “simply [were] required to conduct those activities through programs that [were] separate and independent from the project that receives [federal] funds.” Id. In this way, the regulations in Rust were like those in Taxation With Representation that allowed for protected lobbying to continue" }, { "docid": "22577411", "title": "", "text": "First Amendment. Our cases do not support such a rule. Regan v. Taxation with Representation of Wash., 461 U. S. 540 (1983), stands for the proposition that a tax scheme that discriminates among speakers does not implicate the First Amendment unless it discriminates on the basis of ideas. In that case, we considered provisions of the Internal Revenue Code that discriminated between contributions to lobbying organizations. One section of the Code conferred tax-exempt status on certain nonprofit organizations that did not engage in lobbying activities. Contributions to those organizations were deductible. Another section of the Code conferred tax-exempt status on certain other nonprofit organizations that did lobby, but contributions to them were not deductible. Taxpayers contributing to veterans’ organizations were, however, permitted to deduct their contributions regardless of those organizations’ lobbying activities. The tax distinction between these lobbying organizations did not trigger heightened scrutiny under the First Amendment. Id., at 546-551. We explained that a legislature is not required to subsidize First Amendment rights through a tax exemption or tax deduction. Id., at 546. For this proposition, we relied on Cammarano v. United States, 358 U. S. 498 (1959). In Cammarano, the Court considered an Internal Revenue regulation that denied a tax deduction for money spent by businesses on publicity programs directed at pending state legislation. The Court held that the regulation did not violate the First Amendment because it did not discriminate on the basis of who was spending the money on publicity or what the person or business was advocating. The regulation was therefore “plainly not ‘ “aimed at the suppression of dangerous ideas.’”” Id., at 513, quoting Speiser v. Randall, 357 U. S. 513, 519 (1958). Regan, while similar to Cammarano, presented the additional fact that Congress had chosen to exempt from taxes contributions to veterans’ organizations, while not exempting other contributions. This did not change the analysis. Inherent in the power to tax is the power to discriminate in taxation. “Legislatures have especially broad latitude in creating classifications and distinctions in tax statutes.” Regan, supra, at 547. See also Madden v. Kentucky, 309 U. S. 83," } ]

[ { "docid": "4895714", "title": "", "text": "between a known drug dealer’s criminal activity and the dealer’s residence when some reliable evidence exists connecting the criminal activity with the residence. See, e.g., Miggins, 302 F.3d at 393; Caicedo, 85 F.3d at 1193. When, however, the only evidence of a connection between illegal activity and the residence is unreliable, such as uncorroborated statements by a confidential informant, then a warrant may not issue allowing the search of the residence. Frazier, 423 F.3d at 533. Applying this framework to the instant case, we conclude that the instant warrant affidavit described sufficient facts to establish a nexus between Defendant’s drug trafficking and his residence. The warrant affidavit described the investigating law enforcement agent’s significant experience in narcotics investigations — including over 100 investigations into drug trafficking — and stated that in that agent’s experience drug dealers typically keep evidence of their crime in their residence. Moreover, unlike Frazier, where the warrant affidavit relied entirely on statements of confidential informants to establish a connection between the defendant and his residence, the instant affidavit describes an incident where law enforcement agents observed Defendant visiting his residence right before he traveled to the site of a drug sale. This visit provided a neutral magistrate with a substantial basis to conclude that Defendant may have stopped at his residence to pick up some of his merchandise before meeting his customer at another location. This evidence, combined with the affiant’s statements that he has significant experience in narcotics investigations, is sufficient to establish a nexus between Defendant’s illegal activities and his residence. See Caicedo, 85 F.3d at 1193. Accordingly, we affirm the decision of the district court admitting evidence seized in the search of Defendant’s residence. Because we hold that probable cause supported the warrant, we do not address Defendant’s challenge to the district court’s alternative grounds for denying suppression — the good-faith exception to the probable cause requirement. CONCLUSION The warrant to search Defendant’s home was issued upon probable cause. The warrant affidavit described sufficient evidence to corroborate statements by confidential informants and the affidavit showed a nexus between Defendant’s illegal activities and his" } ]

[ { "docid": "15995917", "title": "", "text": "United States v. Savoca, 761 F.2d 292, 298 (6th Cir.1985). Cases after Savoca were less concerned about the nexus between the evidence to be found and the location to be searched. See United States v. Miggins, 302 F.3d 384, 393-94 (6th Cir.2002) (district court erred in finding no probable cause because evidence is likely to be found where dealers live); United States v. Jones, 159 F.3d 969, 975 (6th Cir.1998) (“that ‘in the case of drug dealers, evidence is likely to be found where the dealers live,’ support[s] a finding of probable cause”) (quoting United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir.1991) (internal citations omitted)); United States v. Caicedo, 85 F.3d 1184, 1192-93 (6th Cir.1996) (finding probable cause based on affidavit that stated, based on affiant-officer’s extensive experience, that “ ‘many drug traffickers utilize their homes to conduct their illegal narcotics trafficking activities’”); United States v. Davidson, 936 F.2d 856, 860 (6th Cir.1991) (“magistrate reasonably inferred that evidence would be found at Davidson’s residence [as] ‘[i]n the case of drug dealers, evidence is. likely to be found where the dealers live’”) (quoting United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986)); United States v. Martin, 920 F.2d 393, 399 (6th Cir.1990) (relying on statement of agent that “in his experience a person engaged in the distribution of cocaine frequently keeps at his residence a number of different items”); see also United States v. Whitner, 219 F.3d 289, 297-98 (3d Cir.2000) (collecting cases finding probable cause based on drug-dealer inference from First, Second, Fourth, Sixth, Seventh, Eighth, Ninth, and D.C. Circuits, but declining to decide whether to adopt rule, resolving case on other grounds); United States v. Nolan, 199 F.3d 1180, 1183-84 & n. 3 (10th Cir.1999) (collecting cases and declining to decide issue). An exception to this general line is United States v. Schultz, 14 F.3d 1093, 1097-98 (6th Cir.1994), which found that a search warrant for safe deposit boxes held by the defendant was not supported by probable cause, where the affidavit had contained the statement that, based on the training and experience of the affiant-offi-cer," }, { "docid": "10126975", "title": "", "text": "But the license alone would not have provided probable cause to search apartment 5F because it could not, on its own, establish a nexus between that apartment and Perez’s apparent crimes, given the formidable evidence linking Perez’s drug-dealing to a different apartment in the building—5K. “To establish probable cause to search a residence, two factual showings are .necessary—first, that, a crime was committed, and second, that there is probable cause to believe that evidence of such crime is located at the residence,” ie., a nexus, between the crime and the place to be searched. United States v. Travisano, 724 F.2d 341, 345 (2d Cir.1983). “A showing of nexus does not require direct evidence arid ‘may be based on reasonable inference from the facts presented based on common sense and experience.’ ” United States v. Singh, 390 F.3d 168, 182 (2d Cir.2004) (quoting United States v. Buck, No. 84 Cr. 220(CSH), 1986 WL 12533, at *4 (S.D.N.Y. Oct. 24, 1986)). Applying these standards, courts have upheld -search warrants for the homes of suspected drug dealers based on little more than the combination of (1) evidence of drug crimes outside the home, (2) evidence identifying the suspected dealer’s home address, and (3) general statements in the search warrant affidavit to the effect that, in the affiant’s experience, drug dealers are likely to keep evidence of their crimes in their homes. See, e.g,, United States v. Benevento, 836 F.2d 60, 70 (2d Cir.1987) (probable cause to search home existed where affidavits contained, inter alia, testimony of DEA agent “that, based upon his extensive experience in drug enforcement investigations, it was his opinion that drug traffickers ... were likely to keep various items of evidence of drug-related activity ... in their personal homes”); United States v. Cruz, 785 F.2d 399, 405 (2d Cir.1986) (probable cause to search infrequently used apartment of suspected drug dealer existed where, inter alia, affiant “ventured his opinion that, based upon his experience, narcotics dealers ‘customarily’ maintain apartments and other locations apart from their residences in furtherance of their business”). However, several district courts in this Circuit have held that," }, { "docid": "20456740", "title": "", "text": "location where they met and where they went to bring and to pick up drugs; that surveillance units followed organization members to 17900 Dunbar Road immediately after the wiretap picked up impending news of a transaction; and that the telephone number at 17900 Dunbar Road belonged to Thomas Summers, a member of the organization. These assertions establish a substantial basis for the magistrate judge’s conclusion. In its affidavit, the government represented that DEA agents actually saw members of the organization frequent 17900 Dunbar Road immediately after hearing news on the wiretap of an impending drug transaction. When read together with the rest of the affidavit, which contains extensive information about multiple narcotics transactions involving those same members of the organization, these assertions establish a “fair probability,” if not a certainty, that 17900 Dunbar Road was used to store drugs. After all, confirmed drug traffiekers traveled to 17900 Dunbar Road shortly after the commencement of a sale. From those facts, it is reasonable to infer that the location was used to store drugs immediately before or after a sale. We have found a “sufficient nexus” between drug dealing activities and a defendant’s residence in similar situations. See, e.g., United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir.1993) (upholding a finding of probable cause to search the defendant’s residence when the affidavit detailed many sales of cocaine involving the defendant, but did not show that any of the sales were consummated at the residence); United States v. Hollis, 490 F.3d 1149, 1153 (9th Cir.2007) (upholding a search when “the affidavit rested primarily on the police officers’ own observation of the controlled drug transaction between Hollis and the witness and the surveillance of Hollis’s subsequent movements, which led to the North Hoyt apartment”); Fernandez, 388 F.3d at 1254 (“Agent Spencer’s statements about the likelihood that the Rambler residence contained contraband or evidence relevant to the crimes charged, which were based on his own professional experience of the Mexican Mafia, combined with the information from the wiretaps, were sufficient to give the magistrate judge a substantial basis to conclude that the items sought" }, { "docid": "16557644", "title": "", "text": "insufficient for probable cause but sufficient for good-faith reliance.” United States v. Washington, 380 F.3d 236, 241 (6th Cir. 2004). The parameters of “objective reasonableness” in the good-faith context have been explored primarily in relation to whether an affidavit established a sufficient nexus between illegal activity and a place to be searched. See Carpenter, 360 F.3d at 594 (affidavit describing marijuana field near residence “fall[s] short of establishing required nexus” between criminal activity and residence); United States v. Laughton, 409 F.3d 744, 751 (6th Cir.2005) (no modicum of evidence connected defen dant, criminal activity, and address to be searched); United States v. Helton, 314 F.3d 812, 821-23 (6th Cir.2003) (outgoing calls from house to known drug dealer did not create substantial basis to believe evidence could be found in house); United States v. Van Shutters, 163 F.3d 331, 337 (6th Cir.1998) (affidavit did not establish any connection between target of investigation and home to be searched); United States v. Weaver, 99 F.3d 1372, 1378-79 (6th Cir.1998) (boilerplate language in affidavit failed to provide particularized facts regarding alleged crime occurring on premises to be searched); United States v. Leake, 998 F.2d 1359, 1365 (6th Cir.1993) (minimal surveillance did not corroborate anonymous tip that narcotics could be found in basement of specific house); see also United States v. Washington, 380 F.3d at 248 (Moore, J., dissenting) (affidavit created only sparse and speculative connection between drug supplier and place to be searched). Although no bright-line rule dictates its outer limit, the zone in which the good-faith exception may be applied is bound on one end by the requirements of probable cause — once that standard is met, application of the exception is unnecessary. Therefore, the relationship between staleness and probable cause is a reasonable place to begin this analysis. A. Staleness and Probable Cause The probable cause inquiry gauges the likelihood that evidence of a crime may presently be found at a certain location. A warrant must be supported by “facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that" }, { "docid": "20706416", "title": "", "text": "with a quantity of crack cocaine on his person. United States v. McPhearson, 469 F.3d 518, 524-25 (6th Cir. 2006). We also found the nexus insufficient in a case where an informant actually identified the defendant’s residence as the site of a drug operation. See United States v. Higgins, 557 F.3d 381, 390 (6th Cir. 2009). The police had not established the informant’s reliability, we explained, and furthermore, the affidavit did not “assert that the informant had been inside [the defendant’s] apartment, that he had ever seen drugs or other evidence inside [the defendant’s] apartment, or that he had seen any evidence of a crime other than the one that occurred when [the defendant] allegedly sold him drugs.” Id. at 390. “Without such an assertion,” we concluded, “the affidavit fails to establish the necessary nexus between the place to be searched and the evidence sought.” Id. (internal quotation marks omitted). In the present case, the search warrant affidavit contained no evidence that Brown distributed narcotics from his home, that he used it to store narcotics, or that any suspicious activity had taken place there. The affidavit did not suggest that a reliable confidential informant had purchased drugs there, that the police had ever conducted surveillance at Brown’s home, or that the recorded telephone conversations linked drug trafficking to Brown’s residence. The Government notes that Brown’s car, which was registered to his residence, was parked outside Middle ton’s home and tested positively for narcotics during a canine search. Although these facts supported the search of Brown’s car, they did not establish a fair probability that evidence of drug trafficking would be found at his residence. A more direct connection was required, such as surveillance indicating that Brown had used the car to transport heroin from his home to Middleton’s on the day in question. The mere fact that the car was registered to Brown’s home was too vague and generalized a nexus to support the search warrant. The Government argues that the magistrate judge was entitled to infer that evidence of drug trafficking would be found at Brown’s residence because he" }, { "docid": "20706415", "title": "", "text": "And of course, whether an affidavit establishes a proper nexus is a fact-intensive question resolved by examining the totality of circumstances presented. See Gates, 462 U.S. at 238, 103 S.Ct. 2317; Brown, 732 F.3d at 573. A number of our cases illustrate situations in which the nexus is too vague or generalized to support a search warrant. In Carpenter, the search warrant affidavit stated only that an officer conducting helicopter surveillance had observed numerous marijuana plants growing near the residence and a road that connected the residence to the plants. 360 F.3d at 593. Although the facts in the affidavit suggested some connection between the marijuana plants and the residence, we held that they were “too vague, generalized, and insubstantial to establish probable cause.” Id. at 595. We have similarly concluded that a search warrant affidavit failed to “establish the requisite nexus between the place to be searched and the evidence to be sought” where it stated no more than that the defendant resided at the address and was arrested there on a non-drug offense with a quantity of crack cocaine on his person. United States v. McPhearson, 469 F.3d 518, 524-25 (6th Cir. 2006). We also found the nexus insufficient in a case where an informant actually identified the defendant’s residence as the site of a drug operation. See United States v. Higgins, 557 F.3d 381, 390 (6th Cir. 2009). The police had not established the informant’s reliability, we explained, and furthermore, the affidavit did not “assert that the informant had been inside [the defendant’s] apartment, that he had ever seen drugs or other evidence inside [the defendant’s] apartment, or that he had seen any evidence of a crime other than the one that occurred when [the defendant] allegedly sold him drugs.” Id. at 390. “Without such an assertion,” we concluded, “the affidavit fails to establish the necessary nexus between the place to be searched and the evidence sought.” Id. (internal quotation marks omitted). In the present case, the search warrant affidavit contained no evidence that Brown distributed narcotics from his home, that he used it to store narcotics," }, { "docid": "23651785", "title": "", "text": "for probable cause when viewed in light of all of the information known at the time of the arrest. United States v. Rodriquez, 869 F.2d 479, 483 (9th Cir.1989) (pattern of activity consistent with participation in drug trafficking sufficient basis for probable cause to stop vehicle and arrest defendant when he took delivery of vehicle from persons suspected of involvement in narcotics trafficking, even though surveilling officers saw no narcotics). “The arresting officer need not have personal knowledge of the facts sufficient to constitute probable cause. Probable cause may be based on the collective knowledge of all of the officers involved in the investigation and all of the reasonable inferences that may be drawn therefrom.” Hoyos, 892 F.2d at 1392 (citations omitted). Here, at the time Garza was arrested, agents were aware of the following facts: the supplier in an aborted attempt to deliver cocaine to Drug Enforcement Agency (DEA) Agent Gassett on the previous day had been driving a red car; Garza drove a red car to the location of the drug buy and let off a passenger who personally delivered the cocaine to Agent Gassett; Garza waited until his passenger showed the cocaine to Agent Gassett before driving away from the location; Garza, trailed by surveil-ling agents, then drove a short distance away and parked his car in a public lot. These facts, when combined with the arresting agents’ knowledge that drug dealers are unlikely to use innocent drivers in a multi-kilogram cocaine delivery, amply support the district court’s finding of probable cause underlying Garza’s arrest. See Hoyos, 892 F.2d at 1393. II Search Warrant Garza contends the district court erred by denying his motion to suppress evidence seized pursuant to a search warrant. Garza points to three possible bases for his argument: the warrant was not supported by probable cause; material misrepresentations and omissions in the warrant affidavit rendered it invalid; and exigent circumstances did not justify the search of an address different from that listed in the warrant. These contentions are without merit. We review for clear error the magistrate’s determination regarding probable cause to issue" }, { "docid": "4895712", "title": "", "text": "via transmitter. Id. Lacking such corroboration of the informant’s reliability, we held that when “the warrant affidavit is based almost exclusively on the uncorroborated testimony of unproven confidential informants ... the allegation that the defendant is a drug dealer, without more, is insufficient to tie the alleged criminal activity to the defendant’s residence.” Id. at 533. Frazier, however, is distinguishable from previous Sixth Circuit cases which upheld a search of a drug dealer’s residence even though police observed no illegal activity at that residence. In United States v. Miggins, 302 F.3d 384 (6th Cir.2002), for example, police arrested one member of a drug conspiracy when he signed for a package under the assumed name “Darnel Smith.” Id. at 393. The package was addressed to “Tommy Lee,” and the sender was “Keith Jackson,” both assumed names of his co-conspirators. Id. In a search pursuant to their arrest of the so-called “Darnel Smith,” police discovered a piece of paper which listed all three assumed names along with an address, which turned out to be the defendant’s residence. Noting the discovery of this address along with aliases associated with the drug conspiracy, we held that police had probable cause to search the defendant’s residence. Id. Similarly, in United States v. Caicedo, 85 F.3d 1184 (6th Cir.1996), we upheld a warrant authorizing a search of a residence despite only a limited connection between the residence and drug related activity. The Caicedo defendant was arrested while traveling with a friend who was carrying cocaine in his backpack. Id. at 1193. While he was being questioned by police, the defendant lied about his address. Id. Given this lie, we held that a warrant affidavit sworn by an experienced narcotics officer, which stated that “the reason for hiding the correct residence could be that further evidence may be located at this location which could be used against Ryan in this particular investigation,” established a sufficient nexus between the defendant and his residence to allow a search of that residence. Id. (emphasis in original). Reading Frazier, Miggins and Caicedo together, this Court’s precedents establish that a nexus exists" }, { "docid": "10126978", "title": "", "text": "narcotics suspect’s residence even when the supporting affidavits recited neither evidence linking the residence to narcotics trafficking nor an affiant’s statement that his experience supported inferring the presence of narcotics paraphernalia, see, e.g., United States v. Williams, 974 F.2d 480, 481-82 (4th Cir. 1992), the Court need not choose between its fellow district courts and these out-of-Circuit authorities. That is because, here, not only did South’s affidavit lack these recitations, it revealed an obvious alternative base for Perez’s narcotics activity— apartment 5K. This circumstance significantly weakened the logical nexus between apartment 5F and the suspected criminal activity. Specifically, if the claims that Perez was seen entering and exiting apartment 5F had been excised from the affidavit, Judge Statsinger would have been left with the following relevant facts: 1. A reliable confidential informant participated in two controlled drug buys outside of 275 East 201st Street. 2. Officers observed Perez coming to and going from an apartment— apartment 5K—on the fifth floor of 275 East 201st Street immediately before and after the drug buys. 3. German Perez produced a New York State driver’s license that identified his address as 275 East 201st Street, Apt. 5F. 4. Apartment 5K and apartment 5F are on the same floor of that building on opposite ends of the hallway. Based on this evidence, Judge Statsinger could not have properly found probable cause to believe that apartment 5F contained evidence of narcotics trafficking. Rather, he rationally could have concluded only that, even if Perez resided in apartment 5F, he operated his drug business out of apartment 5K Absent any evidence regarding apartment 5F other than as appeared on Perez’s driver’s license, the nexus between apartment 5F and Perez’s drug-dealing was simply too tenuous to support probable cause for a search. In an alternative argument, defendants point out that the warrant affidavit sought not only narcotics, paraphernalia, and marked currency, but also the right to search German Perez himself, if found on the premises, for such items. Def. Br. 12 (citing Siddiqi Decl., Ex. B, at 6). They argue that “it would be abundantly reasonable to believe that" }, { "docid": "9628268", "title": "", "text": "v. Orozco, 576 F.3d 745, 749 (7th Cir.2009) (citation and internal quotation marks omitted). And courts are “entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense, and specifically, in the case of drug dealers, evidence is likely to be found where the dealers live.” Id. (citation $nd internal quotation marks omitted). Detective Jimenez’s affidavit establishes a reasonable probability that Kelly dealt drugs. Just days before Jimenez filed his warrant application, officers observed Kelly emerge from behind 1522 Clifton, enter his Buick, drive to meet a reliable informant at a predetermined location, and sell the informant crack cocaine. The informant had previously met Kelly at the rear door of 1522 Clifton and, although Kelly represented to the informant that he would not sell drugs from the apartment, he made clear to the informant that he would be happy to arrange a sale in the neighborhood. Jimenez also concluded, based on his twenty-one years in law enforcement and his execution of over 700 narcotics search warrants, that drug dealers are likely to keép contraband in their residences. -Because issuing magistrates are entitled to take into account the knowledge and experience of police officers when making the probable cause determination, see United States v. Lamon, 930 F.2d 1183, 1189 (7th Cir.1991), Jimenez’s observation, taken together with the facts and circumstances surrounding the informant’s controlled purchase of crack cocaine, certainly creates a “fair probability” that drugs or drug paraphernalia would be found at 1522 Clifton. Even without taking into consideration the anonymous tip from the “concerned citizen” or the welfare check complaint from Patsy Ibarra, Jimenez’s affidavit contained far more evidence to support the issuance of a search warrant than we have required in other cases. In United States v. Orozco, for instance, an affidavit in support of a search warrant application stated that reliable sources had identified the defendant as a “large-scale drug trafficker” from whom they had purchased drugs “in the recent past.” 576 F.3d at 748. This information, combined with the FBI Special Agent affiant’s" }, { "docid": "7956100", "title": "", "text": "did not state how long Keeney had known Holt, or if he, himself, knew Holt. Detective Engle did not even state that Holt was a “reliable source” or that he had given the police reliable information in the past. Cf. United States v. Pinson, 321 F.3d 558, 563 (6th Cir.2003) (holding that an affidavit met “the Allen test” where the officer stated in the affidavit that he knew the informant was “reliable from past information received from said [informant],” the informant was familiar with the drugs at issue from “past experience and exposure,” and where the affidavit contained the officer’s personal observation of the informant’s drug deal, his pat down of the informant before and after the purchase of the narcotics, and the fact that the drugs purchased tested positive for cocaine base). Holt’s tip does not pass the Allen test and, therefore, cannot constitute probable cause on its own. Despite the minimal probative value of Holt’s information, the tip can take on an increased level of significance for probable cause purposes, if corroborated by the police through subsequent investigation. See United States v. Leake, 998 F.2d 1359, 1365 (6th Cir.1993). See also United States v. Helton, 314 F.3d 812, 819 (6th Cir.2003). For example, in United States v. Smith, 783 F.2d 648 (6th Cir.1986), we considered a warrant obtained on the basis of a tip-provided by a confidential informant, whose information was corroborated through the independent investigation of the police. In the supporting affidavit, the officer stated as follows: On the 20th day of August, 1984, at approximately 5:00 p.m., the affiant received information from a reliable informant that Eric Helton was producing marijuana at his residence. Acting on the information received, affiant- conducted the following independent investigation: On August 21, 1984 at 11:30 A.M. Detective William Stweart [sic] observed a marijuana plant growing beside the residence of Eric Helton. Smith, 783 F.2d at 649. The panel stated that the tip standing alone would not have been sufficient to establish probable cause, Smith, 783 F.2d at 650, yet upheld the warrant because the officer’s observations verified the tip and," }, { "docid": "10284608", "title": "", "text": "721 F.2d 1039, 1041 (6th Cir.1983). Our review of the determination must consider the totality of the circumstances. Gates, 462 U.S. at 238, 103 S.Ct. at 2332. Ryan argues that the affidavit offered by Sergeant Bogenschutz does not support a belief that contraband or evidence would be found at Ryan’s home. He takes particular issue with the eighth and ninth paragraphs of the affidavit as demonstrating too much uncertainty on the part of the affiant. Paragraph eight stated that Ryan attempted to conceal his correct address from police, and that “the reason for hiding the correct residence could be that further evidence may be located at this location which could be used against Ryan in this particular investigation.” Paragraph nine also stated several times that Bogenschutz believed evidence may be found at Ryan’s residence. Despite the affidavit’s use of “could be” and “may be,” the affidavit established that Sergeant Bogenschutz, the affiant, had 15 years’ experience in law enforcement generally and at least seven years’ experience specifically in narcotics investigations. The affidavit also attested to the fact that from Bogenschutz’s experience, “many drug traffickers utilize their homes to conduct their illegal narcotics trafficking activities ...,” and it listed several items drug traffickers were likely to keep at their residences. The affidavit further established Bogenschutz knew Ryan was arrested in connection with his companion’s possession of 565 grams of cocaine and that Ryan had lied about his address in statements subsequent to his arrest. Under the totality of the circumstances, we find it was reasonable to defer to the attesting officer’s expertise and that the affidavit adequately established probable cause to search. See Fannin, 817 F.2d at 1382. The district court’s ruling on Ryan’s motion to suppress is therefore affirmed. The decision of the district court denying the defendants’ motions to suppress is AFFIRMED as to Ryan and REVERSED as to Caicedo. . The district court found that many of the officer’s statements at the suppression hearing were undisputed. Where there was a conflict, the court found Mercado credible and discounted Caicedo's version. Ryan did not testify. At oral argument Caicedo's" }, { "docid": "23231871", "title": "", "text": "of narcotics [would be] located at [McDaniels and Miggins’] apartment.” Here, the district court erred in finding that there was an insufficient nexus between the two locations so as to establish probable cause for a search of McDaniels and Miggins’ apartment at 5161 Rice Road. See United States v. Feliz, 182 F.3d 82, 87-88 (1st Cir.1999) (finding that it was reasonable to suppose that drug dealer stored evidence of dealing at home, even though no drug trafficking was observed to occur there); United States v. McClellan, 165 F.3d 535, 546 (7th Cir.1999) (“[I]n issuing a search warrant, a magistrate is entitled to draw reasonable inferences about where the evidence is likely to be kept ... and ... in the case of drug dealers evidence is likely to be found where the dealers live.”) (quoting United States v. Reddrick, 90 F.3d 1276, 1281 (7th Cir.1996)); United States v. Henson, 123 F.3d 1226, 1239 (9th Cir.1997) (“In the case of drug dealers, evidence is likely to be found lohere the dealers live.”) (italics in original) (quoting United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986)); United States v. Luloff, 15 F.3d 763, 768 (8th Cir.1994) (ruling that observations of drug trafficking occurring away from the dealer’s residence, coupled with officer’s statement in his affidavit that drug dealers often store evidence of drug dealing in their residences, provided probable cause for search of dealer’s house); United States v. Thomas, 989 F.2d 1252, 1255 (D.C.Cir.1993) (per curiam) (concluding that observations of drug trafficking away from dealer’s residence can provide probable cause to search the dealer’s house); United States v. Williams, 974 F.2d 480, 482 (4th Cir.1992) (per curiam) (finding that affidavit establishing that known drug dealer resided in motel was sufficient to show probable cause to search motel room for drug paraphernalia); United States v. Davidson, 936 F.2d 856, 859-60 (6th Cir.1991) (holding that the police had probable cause for the issuance of a search warrant since the affidavit revealed a substantial basis for concluding that a search of the defendant’s residence would uncover evidence of wrongdoing); United States v. Cruz, 785 F.2d" }, { "docid": "12114314", "title": "", "text": "Cir.1984). In recognition of that holding, we have developed a requirement that warrant applications must show some “nexus between the place to be searched and the evidence sought.” United States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir.1998) (quoting United States v. Alix, 86 F.3d 429, 435 (5th Cir.1996)); accord United States v. Carpenter, 360 F.3d 591, 594 (6th Cir.2004) (en banc). This nexus, Bucio-Cabrales argues, appears nowhere in Agent Durbin’s affidavit. As Bucio-Cabrales reads the warrant affidavit, the series of events it describes suggests only that Cortez-Torres used 6158 Deewood Loop West for drug trafficking and that he later happened to enter 4020 Migration Lane. Bucio-Cabrales emphasizes that after walking out of the house on Deewood Loop West, Cortez-Torres phoned the government’s informant and stated that he “had [the cocaine]” and “did not want to return to his house with it.” Appellant Br. 30. To Bucio-Cabrales, this statement “obviously indicated that [Cortez-Torres] had retrieved the cocaine from 6198 Deewood Loop [West]” and that he . did not want to go to 4020 Migration Lane with the drugs. Ibid. Only when the government’s informant delayed the meeting by one hour did Cortez-Torres reluctantly go home to 4020 Migration Lane, a place where the affidavit did not- mention drug activity. Ibid. Since “[a] suspect’s mere presence or arrest at a residence is too insignificant a connection with that residence to establish that relationship necessary to a finding of probable cause,” the facts - described in the warrant affidavit were not, in his view, sufficient to establish the requisite “nexus.” Id. at 34 (quoting United States v. McPhearson, 469 F.3d 518, 524 (6th Cir.2006)). We disagree. We have consistently held that an application for a warrant authorizing the search of the residence of an individual suspected of drug trafficking need only add to evidence that the individual is a drug trafficker “some reliable evidence” tying the residence to the individual’s drug-related activity. United States v. Gunter, 266 Fed.Appx. 415, 419 (6th Cir. 2008); see also McPhearson, 469 F.3d at 524-25. Even though Cortez-Torres “did not want to return to his house”" }, { "docid": "20706417", "title": "", "text": "or that any suspicious activity had taken place there. The affidavit did not suggest that a reliable confidential informant had purchased drugs there, that the police had ever conducted surveillance at Brown’s home, or that the recorded telephone conversations linked drug trafficking to Brown’s residence. The Government notes that Brown’s car, which was registered to his residence, was parked outside Middle ton’s home and tested positively for narcotics during a canine search. Although these facts supported the search of Brown’s car, they did not establish a fair probability that evidence of drug trafficking would be found at his residence. A more direct connection was required, such as surveillance indicating that Brown had used the car to transport heroin from his home to Middleton’s on the day in question. The mere fact that the car was registered to Brown’s home was too vague and generalized a nexus to support the search warrant. The Government argues that the magistrate judge was entitled to infer that evidence of drug trafficking would be found at Brown’s residence because he was a known drug dealer. We have acknowledged that “[i]n the case of drug dealers, evidence is likely to be found where the dealers live.” United States v. Jones, 159 F.3d 969, 975 (6th Cir. 1998) (citation omitted). Thus, in some cases, we have permitted judges to infer a fair probability of finding evidence in a residence even though the affidavit did not state that such evidence had been observed directly. See, e.g., id. at 974-75. We have never held, however, that a suspect’s “status as a drug dealer, standing alone, gives rise to a fair probability that drugs will be found in his home.” United States v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005). Rather, we have required some reliable evidence connecting the known drug dealer’s ongoing criminal activity to the residence; that is, we have required facts showing that the residence had been used in drug trafficking, such as an informant who observed drag deals or drug paraphernalia in or around the residence. Compare Jones, 159 F.3d at 974-75 (finding probable cause" }, { "docid": "4895706", "title": "", "text": "The Cadillac remained at the residence for two to three minutes. TBI agents then followed the Cadillac as it stopped at another residence, and eventually traveled to the site of the controlled purchase. Like the first purchase, this controlled purchase was also monitored via transmitter by the TBI. The next day, TBI Special Agent Bryan Freeman sought a warrant to search Defendant’s residence for drugs, evidence of drug transactions and firearms. In addition to setting out the above facts in an affidavit accompanying the warrant application, Agent Freeman also described his significant experience in narcotics investigations, including over 100 investigations into drug trafficking, and stated that in his experience “individuals involved in drug trafficking frequently conceal, in their residence ... caches of illicit drugs, large amounts of Unites [sic] States currency and/or other illicit proceedings of drug transactions, as well as records of drug transactions.” (J.A. 34.) A photo of Defendant’s residence was also included in the affidavit to indicate the premises to be searched. Based on this affidavit, a Tennessee state judge issued a warrant to search Defendant’s home. The ensuing search uncovered narcotics, cash and firearms, as well as drug paraphernalia in a Cadillac parked outside the residence. DISCUSSION Standard of Review When reviewing a denial of a motion to suppress evidence, we review the district court’s findings of fact for clear error and its conclusions of law de novo. United States v. Jones, 159 F.3d 969, 974 (6th Cir.1998). In reviewing the decision of the magistrate issuing the search warrant, however, “we consider the evidence that the issuing magistrate had before him only ‘to ensure that [he] ha[d] a substantial basis ... for concluding that probable cause existed.’ ” Id. (quoting Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Analysis A warrant to search a residence may not issue except “upon probable cause, supported by Oath or affirmation.” U.S. Const, amend. IV. To secure a search warrant, law enforcement must present a neutral magistrate “evidence from which the magistrate judge can conclude from the totality of the circumstances, ‘including the ‘veracity’" }, { "docid": "4895715", "title": "", "text": "where law enforcement agents observed Defendant visiting his residence right before he traveled to the site of a drug sale. This visit provided a neutral magistrate with a substantial basis to conclude that Defendant may have stopped at his residence to pick up some of his merchandise before meeting his customer at another location. This evidence, combined with the affiant’s statements that he has significant experience in narcotics investigations, is sufficient to establish a nexus between Defendant’s illegal activities and his residence. See Caicedo, 85 F.3d at 1193. Accordingly, we affirm the decision of the district court admitting evidence seized in the search of Defendant’s residence. Because we hold that probable cause supported the warrant, we do not address Defendant’s challenge to the district court’s alternative grounds for denying suppression — the good-faith exception to the probable cause requirement. CONCLUSION The warrant to search Defendant’s home was issued upon probable cause. The warrant affidavit described sufficient evidence to corroborate statements by confidential informants and the affidavit showed a nexus between Defendant’s illegal activities and his residence. Accordingly, we AFFIRM Defendant’s conviction." }, { "docid": "4895707", "title": "", "text": "warrant to search Defendant’s home. The ensuing search uncovered narcotics, cash and firearms, as well as drug paraphernalia in a Cadillac parked outside the residence. DISCUSSION Standard of Review When reviewing a denial of a motion to suppress evidence, we review the district court’s findings of fact for clear error and its conclusions of law de novo. United States v. Jones, 159 F.3d 969, 974 (6th Cir.1998). In reviewing the decision of the magistrate issuing the search warrant, however, “we consider the evidence that the issuing magistrate had before him only ‘to ensure that [he] ha[d] a substantial basis ... for concluding that probable cause existed.’ ” Id. (quoting Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Analysis A warrant to search a residence may not issue except “upon probable cause, supported by Oath or affirmation.” U.S. Const, amend. IV. To secure a search warrant, law enforcement must present a neutral magistrate “evidence from which the magistrate judge can conclude from the totality of the circumstances, ‘including the ‘veracity’ and ‘basis’ of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” United States v. Williams, 224 F.3d 530, 532 (6th Cir.2000) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Defendant alleges that the warrant affidavit in this case failed to establish probable cause because it failed to establish the reliability of the confidential informants’ statements to police. Additionally, Defendant claims that the affidavit did not demonstrate a sufficient nexus between his drug trafficking and his residence to allow a search of that residence. We disagree. A. The Reliability of the Confidential Informants When, as here, a warrant affidavit provides no indicia of an informant’s reliability, “courts insist that the affidavit contain substantial independent police corroboration.” United States v. Frazier, 423 F.3d 526, 532 (6th Cir.2005). Such independent corroboration may be established, however, by a police monitored, controlled purchase, such as the two which occurred in this case. In United States" }, { "docid": "22908991", "title": "", "text": "2329. One of the indicia of reliability discussed in Gates is the “corroboration of details of an informant’s tip by independent police work.” Id. at 241, 103 S.Ct. at 2334. “The standard of review for the issuance of a search warrant requires us to examine whether the magistrate had a substantial basis for concluding that the affidavit in support of the warrant established probable cause.” United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir.1986) (citing United States v. Seybold, 726 F.2d 502, 503 (9th Cir.1984)). “This inquiry is less probing than de novo review and shows deference to the issuing magistrate’s determination.” Id. The “totality of the circumstances” set forth in the supporting affidavit discloses sufficient indicia of reliability of the confidential informant’s tip. The affidavit stated that the informant personally observed Eric Ayers participate in the sale of cocaine. The informant knew the substance was cocaine because he had possessed and used it on prior occasions. The affidavit detailed the informant’s prior activities in connection with the police, including participating in approximately 15 to 18 controlled buys of contraband under the direction of officers from the Contra Costa County Sheriff’s Department and the San Pablo Police Department. The affidavit further stated that the informant had never been known to give any false information to the Contra Costa Sheriff’s Narcotics Unit or to the affiant. Detective Buehler also conducted an independent investigation to verify the identity and address of Eric Ayers. This investigation disclosed that Eric Ayers had previously been arrested for the possession of drugs. Based on the totality of the circumstances set forth in the affidavit, the mag istrate had a substantial basis for concluding that the informer’s tip was reliable. Eddie Ayers also contends that the search warrant was not supported by probable cause because the affidavit failed to establish a nexus between Eric Ayers’ alleged narcotic sales and the Glynis Drive residence. The key case upon which Eddie Ayers relies is United States v. Bailey, 458 F.2d 408 (9th Cir.1972). In Bailey, we determined that the denial of a motion to suppress evidence of a" }, { "docid": "23010208", "title": "", "text": "3. The evidence was taken to the MSET office where it was field tested by Officer Adams with a positive result for crack cocaine. 4. The affiant feels that based on the facts and circumstances above and the affiant[’s] prior experience that a search of the listed above location will reveal narcotics, evidence of narcotic trafficking, or any of the other items listed to be searched for. 5. It is the experience of the affiant that persons in the trafficking of narcotics often keep firearms present for the protection of such activity. The search warrant was issued by the magistrate on the basis of the above information and the search of 26868 Penn was carried out on the day after the controlled narcotics purchase. The district court concluded that, although there were no statements in the affidavit about the reliability of the Cl, Officer Adams’ statements that he set up the controlled buy and took necessary precautions before and after the orchestrated purchase adequately corroborated the Cl’s information and, thus, provided sufficient probable cause for the issuance of the search warrant. Contrary to defendant’s assertion, the present circumstances are not analogous to United States v. Laughton, 409 F.3d 744, 747 (6th Cir.2005), in which we concluded that the search warrant lacked probable cause because it “failed to make any connection between the residence to be searched and the facts of criminal activity that the officer set out in his affidavit” and “also failed to indicate any connection between the defendant and the address given or between the defendant and any of the criminal activity that occurred there.” No similar deficiency is present in the affidavit in this case. Here, the details of the controlled purchase, and its connection to 26868 Penn, were spelled out in the affidavit. Officer Adams indicated that the Cl “has made several purchases from” 26868 Penn. He further described the controlled purchase that he organized to corroborate the informant’s information. The Cl’s basis of knowledge was his direct purchase of narcotics from defendant; the purchase was controlled and witnessed by Officer Adams, who searched the Cl" } ]

[ { "docid": "18806019", "title": "", "text": "Puerto Rico, Inc., 494 F.2d 94, 99 (1st Cir. 1974); In re Harbor Tank Storage Co., Inc., 385 F.2d 111, 115 (3d Cir.1967). Thus, Olson acted reasonably when it expected the same formal notice of the confirmation hearing which was sent to other identifiable creditors. Inasmuch as Olson was deprived of the opportunity to comment on Reliable’s Third Amended Plan of Reorganization, it was denied due process of law. II. Reliable’s primary contention is that, even if Olson was not given the requisite notice, Olson is still subject to the confirmed Plan as are all of the other creditors. Reliable argues that 11 U.S.C. § 1141(d) discharges all claims, whether a proof of claim has been filed, whether such claim is allowed, or whether the claimholder has accepted the plan. Further, Reliable contends that an “all-encompassing” discharge is necessary to meet the purpose of reorganization to give the debtor a “fresh start.” Thus, Reliable - urges that the only remedy available to Olson is to file a late claim under the confirmed Plan. Sections 1141(c) and (d) ostensibly allow any claim to be discharged even though the claimholder has not received notice of the proceeding or of the confirmation hearing. However, we hold that notwithstanding the language of section 1141, the discharge of a claim without reasonable notice of the confirmation hearing is violative of the fifth amendment to the United States Constitution. See 5 Collier on Bankruptcy Para. 1141.01[b], at 1141-12. In our view, this holding is supported by the Supreme Court’s decisions in Mullane, supra, and New York, supra, and by two other circuit court opinions which applied this reasoning specifically to bankruptcy reorganization proceedings. See In re Intaeo, supra; In re Harbor Tank, supra. Inasmuch as we have held the notice by Reliable to Olson was deficient, the district court’s decision was not contrary to law; Olson’s claim cannot be bound to the Plan and, thus, it is not dischargeable. A fundamental right guaranteed by the Constitution is the opportunity to be heard when a property interest is at stake. Specifically, the reorganization process depends upon all" } ]

[ { "docid": "1142235", "title": "", "text": "Act the First Circuit Court of Appeals said: We therefore hold that the failure of the trustee, knowing of the creditor’s claim, to mail the various notices required of chapter X, precludes a finding that the creditor is barred by confirmation of the reorganization plan from presenting his claim to a bankruptcy court.... As the Supreme Court has stated, the creditor has a right to assume that proper and adequate notice will be provided before his claims are forever barred.... ” In re Intacto Puerto Rico, Inc., 494 F.2d 94, 99 (1st Cir.1974). The plaintiffs in this proceeding, not having received official notice of Sullivan’s reorganization case and not having actual knowledge of the case in time to file a proof of claim before confirmation, are not barred from pursuing their claim. Appropriate orders will be entered. . The order confirming Sullivan’s reorganization plan dated August 6, 1980 states in part: That all holders of claims against or of interests in the debtor ... are hereby perpetually enjoined and stayed from pursuing or attempting to pursue or from commencing any suits or proceedings at law, in equity, or otherwise, against the debtor ... except that the foregoing shall not apply with respect to claims, rights or interests arising out of the plan or this order, or administrative claims, and further excepting such claims as are not discharged by law. . Holders of claims that are “scheduled as disputed, contingent, or unliquidated” in a chapter 11 case are required to file a proof of claim. 11 U.S.C.A. § 1111(a) (1979). . 11 U.S.C.A. § 1141(d)(1), as pertinent, provides: Except as otherwise provided in this subsection, in the plan, or in the order confirming the plan, the confirmation of a plan— (A) discharges the debtor from any debt that arose before the date of such confirmation, ... whether or not— (i) a proof of the claim based on such debt is filed; ... (ii) such claim is allowed under section 502 of this title; or (iii) the holder of such claim has accepted the plan; ...." }, { "docid": "3533765", "title": "", "text": "at issue are pre-petition claims. Our determination is based on the Code’s definition of “claim,” the legislative history surrounding 11 U.S.C. § 101(5), and the cornerstone theory of bankruptcy, the “Fresh Start.” Indisputably, those who hold claims are creditors. 11 U.S.C. § 101(10) defines “creditor” to mean an “entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor.” As stated above, Asbestosis Claimants hold claims that arose pre-petition and are, therefore, creditors within the meaning of the Code. Generally, the Code provides that a creditor of a Chapter 11 debtor loses its pre-petition claims after the debtor’s bankruptcy reorganization plan is confirmed, even if it was not notified of the bankruptcy. 11 U.S.C. § 1141; see also, In re Brooks Fashion Stores, Inc., 124 B.R. 436 (Bkrtcy.S.D.N.Y.1991). The due process considerations of the Fifth Amendment, however, are given great weight and take precedence over the discharge provisions of § 1141, in cases where a debtor has knowledge of claims against it, and fails to inform claimants of the pendency of the proceedings. See, Broomall Industries, Inc. v. Data Design Logic Systems, 786 F.2d 401, 403 (Fed.Cir.1986); Brooks, supra, 124 B.R. at 445; In re General Oil Distributors, Inc., 68 B.R. 603 (Bkrtcy.E.D.N.Y.1986). This is not to say § 1141 is unconstitutional per se, but that its application in certain circumstances could be unconstitutional. When a creditor was known to the debtor, or should have been known under the circumstances, Courts will examine closely whether a creditor’s Fifth Amendment rights were violated. Broomall, supra, 786 F.2d at 403. Even where a creditor is aware of the pendency of the bankruptcy case, Courts have held that the debtor is obligated to give formal actual notice to the creditor where the creditor is known to the debtor. New York v. New York, N.H. & H.R. Co., 344 U.S. 293, 73 S.Ct. 299, 97 L.Ed. 333 (1953); see also, In re Spring Valley Farms, Inc., 863 F.2d 832 (11th Cir.1989); In re Moskowitz, 35 B.R. 750 (S.D.N.Y.1983). In light of the" }, { "docid": "3533766", "title": "", "text": "fails to inform claimants of the pendency of the proceedings. See, Broomall Industries, Inc. v. Data Design Logic Systems, 786 F.2d 401, 403 (Fed.Cir.1986); Brooks, supra, 124 B.R. at 445; In re General Oil Distributors, Inc., 68 B.R. 603 (Bkrtcy.E.D.N.Y.1986). This is not to say § 1141 is unconstitutional per se, but that its application in certain circumstances could be unconstitutional. When a creditor was known to the debtor, or should have been known under the circumstances, Courts will examine closely whether a creditor’s Fifth Amendment rights were violated. Broomall, supra, 786 F.2d at 403. Even where a creditor is aware of the pendency of the bankruptcy case, Courts have held that the debtor is obligated to give formal actual notice to the creditor where the creditor is known to the debtor. New York v. New York, N.H. & H.R. Co., 344 U.S. 293, 73 S.Ct. 299, 97 L.Ed. 333 (1953); see also, In re Spring Valley Farms, Inc., 863 F.2d 832 (11th Cir.1989); In re Moskowitz, 35 B.R. 750 (S.D.N.Y.1983). In light of the highly publicized Johns-Manville bankruptcy, which sought bankruptcy protection precisely because the ravages of asbestos dust threatened the continued viability of an otherwise robust Manville in the form of unmanifested asbestos-related claims, it is our belief that ample evidence existed for Waterman to conclude that an amorphous class of un-manifested asbestosis claimants, namely the Claimants before us, existed at the time Waterman filed its bankruptcy petition. Yet, Waterman neglected or declined to include this class of creditors on its schedules. Particularly where no other creditor in this bankruptcy had interests sufficiently aligned with those of the future Asbestosis Claimants to invite them to participate in the reorganization, do we feel compelled to examine whether the Fifth Amendment due process requirements were met. Indeed, all creditors in the Waterman bankruptcy and, to some extent the debtor itself, had interests antithetical to the future Asbestosis Claimants. Unsecured creditors had little incentive to invite another class of claimants to share in its pro rata recovery. Moreover, although Waterman should have been motivated to represent the Asbestosis Claimants in its" }, { "docid": "3910743", "title": "", "text": "to list a creditor, then the debt- or has done all that should be done. If by happenstance there exists a person unknown to the debtor who has a claim, it is incumbent upon that person, once he becomes aware that bankruptcy proceedings have been initiated, to inquire further in an effort to determine whether his claim might be affected. The Ninth Circuit, in the case of Matter of Gregory, 705 F.2d 1118 (9th Cir.1983), has said that when a holder of a large unsecured claim has notice enough to excite attention and put him on his guard such that further inquiry would be in order, that notice is “notice of everything to which such inquiry may have led.” This is exactly the situation Knight finds himself in. Being intimate with Siouxland’s financial condition, at least since 1979, he knew that its condition was extremely fragile. He also knew of the fact of the Chapter 11 filing almost contemporaneous with the act. Armed with this knowledge, he could not sit back and do nothing to make Siouxland aware of his claim in time for it to be scheduled. Rather, his was the responsibility to at least let Siouxland know in some fashion that he had a claim. He comes too late to ■ the Court to argue that he should not be barred from filing a claim. An order confirming a plan under Chapter 11 generally operates to discharge a debtor from claims that arose prior to the date of confirmation whether or not a proof of claim is filed. 11 U.S.C. § 1141(d)(l)(A)(i). The case-law-created exception is in the instance where the debtor knew of the creditor’s claim but failed to provide the creditor notice of the Chapter 11 filing, and the creditor otherwise did not have actual knowledge of the filing in time to file a proof of claim. In re Intaco Puerto Rico, Inc., 494 F.2d 94 (1st Cir.1974); In re American Properties, Inc., 30 B.R. 247 (Bankr.D.Kan.1983); In re Sullivan Ford Sales, Inc., 25 B.R. 400 (Bankr.D.Me.1982). Knight does not come within this exception to section" }, { "docid": "10255209", "title": "", "text": "Court explained, “Even assuming that Charter knew there was a possibility of a claim by Pemex, Charter was not required to give actual notice to creditors with merely conceivable, conjectural or speculative claims.” Id. at 8. The District Court determined that publication notice was satisfactory for unknown creditors, and then, remanded the case back to the Bankruptcy Court to determine whether Pemex was a known or unknown creditor. The Supreme Court has held that publication notice for creditors who are not reasonably ascertainable satisfies due process concerns. Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 490, 108 S.Ct. 1340, 1347, 99 L.Ed.2d 565 (1988). The same Court averred that not everyone who may conceivably have a claim is properly considered a creditor entitled to formal notice. Id. Further, the Fourth Circuit has held: In bankruptcy, the court has an obligation not only to the potential claimants, but also to existing claimants and the petitioner’s stockholders. The Court must balance the needs of notification of potential claimants with the interests of existing creditors and claimants. A bankrupt estate’s resources are always limited and the bankruptcy court must use discretion in balancing these interests when deciding how much to spend on notification. Vancouver Women’s Health Collective Soc. v. A.H. Robins Co. (In re A.H. Robins Co.), 820 F.2d 1359, 1364 (4th Cir.1987). In the case at bar, the Debtors provided mail notice of the bar date to approximately 4,000 creditors, and caused the Notice to be published in the national edition of The New York Times, the national edition of The Wall Street Journal, and in a trade magazine. The Debtors clearly have satisfied the notice requirements of the Bankruptcy Law and constitutional due process considerations. VI. Confirmation Order Under § 1141 of the Code, the confirmation of a chapter 11 plan of reorganization discharges the debtor from any debt that arose prior to confirmation, unless the debt is specifically excepted under the Code, plan, or order confirming the plan. See 11 U.S.C. § 1141. Nevertheless, MESC cites several cases for the proposition that § 1141(d)(1)(A) is unconstitutional. See In" }, { "docid": "14932464", "title": "", "text": "relevant to this discussion. . Bankruptcy Code § 523(a)(3), § 727(b), § 1141(d)(2). . See Bankruptcy Code § 523(a). . An excellent discussion of the inequity and unconstitutionality of discharging a claim without notice or knowledge can be found in In re Texas Tamale, 219 B.R. 732, 738 (Bkrtcy.S.D.Tex.1998). In that case, Judge Greendyke wrote: ‘‘Reliable Electric Co. v. Olson Constr. Co., 726 F.2d 620 (10th Cir.1984) (discharge of claim without notice of confirmation hearing violates Fifth Amendment); In re Unioil, 948 F.2d 678 (10th Cir.1991) (bankruptcy court reversed for barring creditor’s claim who had not received notice of bar date OR of the plan's confirmation hearing): In re Leading Edge Products, 120 B.R. 616 (Bankr.D.Mass.1990) (claim not barred when creditor did not receive notice of disclosure statement or confirmation hearing); In re General Oil Distributors, Inc., 68 B.R. 603 (Bankr.E.D.N.Y.1986) (no notice of bar date or of confirmation hearing). Likewise, it is also easy to see how not informing a claimant of the bankruptcy proceedings in general would violate the fifth Amendment. In such a situation, the claimant would have no indication the bankruptcy is proceeding at all. It would be the height of inequity to impair that creditor's rights without giving an opportunity to participate in the reorganization process. Broomall Industries, Inc. v. Data Design Logic Systems, Inc., 786 F.2d 401 (Fed.Cir.1986) (Fifth Amendment takes precedence over discharge provisions where claimant has no knowledge of pendency of proceedings); In re Adams, 734 F.2d 1094 (5th Cir.1984) (claim not barred when creditor received no notice of bankruptcy proceedings.)” . Two other grounds for modification are stated, but neither is applicable to this case. . Norton Bankruptcy Law and Practice 2d, § 124:2. . The right to amend bankruptcy schedules does not determine the consequences of the amendment. Compare for example, the analysis of the (lack of) consequences of a late amendment of chapter 7 schedules to add a creditor. In re Karamitsos, 88 B.R. 122 (Bankr.S.D.Tx.1988). . Collier ¶ 1329.02. 8 Collier on Bankruptcy (15th ed.1988) ¶ 1329.02. . Collier ¶ 1329.04[1]. 8 Collier on Bankruptcy (15th ed.1988) ¶" }, { "docid": "20462553", "title": "", "text": "upon confirmation. The operation of the Bankruptcy Code, including its discharge provisions, is subject to due process constraints. Ginsberg v. Lindel, 107 F.2d 721, 726 (8th Cir.1939); Broomall Indus., Inc. v. Data Design Logic Sys., Inc., 786 F.2d 401, 403 (Fed.Cir. 1986) (stating “Fifth Amendment due process considerations take precedence over the discharge provisions of section 1141 of the Bankruptcy Code”). “[Bjefore a prepetition or pre-confirmation claim can be discharged under the applicable provisions of the Bankruptcy Code, a debtor’s creditors must be afforded notice of the debt- or’s bankruptcy case, as well as the deadline for asserting any pre-petition claims against the debtor.” Zurich Am. Ins. Co. v. Tessler (In re J.A. Jones, Inc.), 492 F.3d 242, 249 (4th Cir.2007). Absent such notice, creditors lack “the opportunity to participate in a meaningful way in the course of bankruptcy proceedings.” In re Hairopoulos, 118 F.3d 1240, 1244 (8th Cir.1997). According to a landmark Supreme Court case, “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 94 L.Ed. 865 (1950). These principles come in handy when evaluating the chronology of events in Sanchez’s case. By the time Sanchez’s claim accrued in March 2007, the August 16, 2006, deadline for regular creditors to submit proofs of claim had long passed. The bankruptcy proceedings were coming to an end, with only two months remaining until the confirmation of the plan. As this court explained before, [T]he addition of a creditor, at a late stage in a case, is inherently problematic [because] creditors have a right to adequate notice and the opportunity to participate in hearings/meetings in the course of a bankruptcy case, e.g., the meeting of creditors, the confirmation hearing, and/or other processes, such as the proof of claim process, before disallowance or discharge of their claims. In re Hairopoulos, 118 F.3d at" }, { "docid": "10222642", "title": "", "text": "502(g), 502(h) or 502(i) of this title, whether or not— (i) a proof of the claim based on such debt is filed or deemed filed under section 501 of this title; (ii) such claim is allowed under section 502 of this title; or (iii) the holder of such claim has accepted the plan; In short, the Code provides generally that a creditor of a Chapter 11 debtor corporation loses his pre-petition claims after the debt- or’s bankruptcy reorganization plan is confirmed, even if he was not notified of the bankruptcy or his right to a share of the bankruptcy estate. Four Circuit Courts have found 11 U.S.C. § 1141(d)(1)(A) and its predecessor statutes unconstitutional, relying on Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) and City of New York v. New York, New Haven & Hartford Railroad Co., 344 U.S. 293, 73 S.Ct. 299, 97 L.Ed. 333 (1953). Broomall Industries v. Data Design Logic Systems, 786 F.2d 401 (Fed.Cir.1986); Reliable Electric v. Olson Construction, 726 F.2d 620 (10th Cir.1984); In re Intaco Puerto Rico Inc., 494 F.2d 94 (1st Cir.1974); In re Harbor Tank Storage Co., 385 F.2d 111 (3d Cir.1967). All four Circuit Court decisions hold that 11 U.S.C. § 1141(d)(1)(A) denies creditors due process when creditors have insufficient notice of the bankruptcy case to file a claim. In the opinion of this court, due process should also require that a debtor notify a creditor of his claim when the creditor is unlikely to know about the claim otherwise. A creditor who is notified of the bankruptcy but not of his claim is in the same position as a creditor who has notice of his claim, but not of the bankruptcy. In all bankruptcy cases, the debtor must list all claims against the bankruptcy estate. 11 U.S.C. § 521. As noted above, the definition of “claim” is very broad under 11 U.S.C. § 101, and properly includes causes of action for indemnity and contribution. Injured employees in New York State often sue manufacturers of their employers’ machines, and subsequently," }, { "docid": "10222641", "title": "", "text": "that Van Dorn’s claim arose pre-pe-tition, the court suggests that Van Dorn must move to vacate the automatic stay before proceeding further in District Court. In light of the court’s suggestion below that Van Dorn’s claim is non-dischargeable in bankruptcy, the court would be inclined to grant a motion to vacate the stay for “cause” under 11 U.S.C. § 362(d)(1). VAN DORN’S CLAIM IS NON-DISCHARGEABLE The court presumes that non-discharge-ability constitutes “cause” to lift the automatic stay against litigation of a claim, but the parties did not brief the nondischarge-ability issue in this case: whether a creditor who is unaware of his claim against a debtor before the bankruptcy plan is confirmed can later obtain a non-dischargeable judgment of his claim. 11 U.S.C. § 1141(d)(1)(A) provides as follows: (d)(1) Except as otherwise provided in this subsection, in the plan, or in the order confirming the plan, the confirmation of a plan— (A) discharges the debtor from any debt that arose before the date of such confirmation, and any debt of a kind specified in section 502(g), 502(h) or 502(i) of this title, whether or not— (i) a proof of the claim based on such debt is filed or deemed filed under section 501 of this title; (ii) such claim is allowed under section 502 of this title; or (iii) the holder of such claim has accepted the plan; In short, the Code provides generally that a creditor of a Chapter 11 debtor corporation loses his pre-petition claims after the debt- or’s bankruptcy reorganization plan is confirmed, even if he was not notified of the bankruptcy or his right to a share of the bankruptcy estate. Four Circuit Courts have found 11 U.S.C. § 1141(d)(1)(A) and its predecessor statutes unconstitutional, relying on Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) and City of New York v. New York, New Haven & Hartford Railroad Co., 344 U.S. 293, 73 S.Ct. 299, 97 L.Ed. 333 (1953). Broomall Industries v. Data Design Logic Systems, 786 F.2d 401 (Fed.Cir.1986); Reliable Electric v. Olson Construction, 726" }, { "docid": "20462552", "title": "", "text": "right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” 11 U.S.C. § 101(5)(A). In McSherry v. Trans World Airlines, Inc., this court held a cause of action that accrues prior to the confirmation of the plan constitutes a “claim” dischargeable upon confirmation even if it lacks some jurisdictional prerequisite for proceeding in court, like exhaustion. 81 F.3d at 741 (employee’s cause of action under the ADA constituted a “claim” under § 101(5)(A) of the Bankruptcy Code where employee was terminated and his legal claim therefore accrued prior to confirmation, even though he did not yet receive a right-to-sue letter and could not therefore proceed in court). By analogy, Sanchez’s cause of action, which had accrued but had not been fully exhausted prior to the confirmation of Northwest’s reorganization plan on May 31, 2007, matured into a “claim” within the meaning of § 101(5)(A) at the time Northwest rescinded his promotion on March 31, 2007. Nevertheless, McSherry does not compel the conclusion that Sanchez’s claim was discharged upon confirmation. The operation of the Bankruptcy Code, including its discharge provisions, is subject to due process constraints. Ginsberg v. Lindel, 107 F.2d 721, 726 (8th Cir.1939); Broomall Indus., Inc. v. Data Design Logic Sys., Inc., 786 F.2d 401, 403 (Fed.Cir. 1986) (stating “Fifth Amendment due process considerations take precedence over the discharge provisions of section 1141 of the Bankruptcy Code”). “[Bjefore a prepetition or pre-confirmation claim can be discharged under the applicable provisions of the Bankruptcy Code, a debtor’s creditors must be afforded notice of the debt- or’s bankruptcy case, as well as the deadline for asserting any pre-petition claims against the debtor.” Zurich Am. Ins. Co. v. Tessler (In re J.A. Jones, Inc.), 492 F.3d 242, 249 (4th Cir.2007). Absent such notice, creditors lack “the opportunity to participate in a meaningful way in the course of bankruptcy proceedings.” In re Hairopoulos, 118 F.3d 1240, 1244 (8th Cir.1997). According to a landmark Supreme Court case, “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice" }, { "docid": "10255211", "title": "", "text": "re General Oil Distributors, Inc., 68 B.R. 603 (Bankr.E.D.N.Y.1986); Broomall Industries, Inc. v. Data Design Logic Systems, Inc., 786 F.2d 401 (Fed.Cir.1986); Reliable Electric Co. v. Olson Constr. Co., 726 F.2d 620 (10th Cir.1984); In re Intaco Puerto Rico, Inc., 494 F.2d 94 (1st Cir.1974). However, these cases did not hold that § 1141(d)(1)(A) is unconstitutional per se, but that its application in certain circumstances could be unconstitutional. A cursory review of these cases demonstrates that the courts were concerned with the deprivation of due process of creditors who are without sufficient notice of the bankruptcy case to file a claim. Further review of the cases reveals that the alleged creditor was “known” or clearly should have been known under the circumstances. That is different from the facts of the case at bar. The confirmation of a plan binds all creditors “whether or not the creditor is im paired and whether or not the creditor files a claim. 11 U.S.C. § 1141(a).” Ravenna Industries., Inc. v. Ohio Bureau of Workers’ Compensation (In re A.C. Williams), 51 B.R. 496, 501 (Bankr.N.D.Ohio 1985) (quoting In re American Properties, Inc., 30 B.R. 239, 246 (Bankr.D.Kan.1983)). Following confirmation, except as provided in the plan, the confirmation order or §§ 1141(d)(2) or 1141(d)(3), the property dealt with by the plan is free and clear of all claims and interests of creditors, equity security holders and general partners in the debtor. Code § 1141(c); see also General Electric Credit Corp. v. Nardulli & Sons, Inc. (In re Nardulli & Sons, Inc.), 836 F.2d 184 (3d Cir.1988). CONCLUSION In light of the foregoing, MESC’s motion to dismiss for lack of jurisdiction is denied and the Debtor’s motion for summary judgment is granted. Accordingly, since MESC was not a known creditor and did not file either a pre-petition or post-petition claim, nor did MESC move for leave to file a late proof of claim, any claim for redetermined pre-petition or pre-confirmation taxes was discharged by § 1141 and the Confirmation Order itself. However, post-confirmation taxes (those taxes which accrued post-confirmation) are not discharged. Attorneys for Debtor to settle" }, { "docid": "10255210", "title": "", "text": "claimants. A bankrupt estate’s resources are always limited and the bankruptcy court must use discretion in balancing these interests when deciding how much to spend on notification. Vancouver Women’s Health Collective Soc. v. A.H. Robins Co. (In re A.H. Robins Co.), 820 F.2d 1359, 1364 (4th Cir.1987). In the case at bar, the Debtors provided mail notice of the bar date to approximately 4,000 creditors, and caused the Notice to be published in the national edition of The New York Times, the national edition of The Wall Street Journal, and in a trade magazine. The Debtors clearly have satisfied the notice requirements of the Bankruptcy Law and constitutional due process considerations. VI. Confirmation Order Under § 1141 of the Code, the confirmation of a chapter 11 plan of reorganization discharges the debtor from any debt that arose prior to confirmation, unless the debt is specifically excepted under the Code, plan, or order confirming the plan. See 11 U.S.C. § 1141. Nevertheless, MESC cites several cases for the proposition that § 1141(d)(1)(A) is unconstitutional. See In re General Oil Distributors, Inc., 68 B.R. 603 (Bankr.E.D.N.Y.1986); Broomall Industries, Inc. v. Data Design Logic Systems, Inc., 786 F.2d 401 (Fed.Cir.1986); Reliable Electric Co. v. Olson Constr. Co., 726 F.2d 620 (10th Cir.1984); In re Intaco Puerto Rico, Inc., 494 F.2d 94 (1st Cir.1974). However, these cases did not hold that § 1141(d)(1)(A) is unconstitutional per se, but that its application in certain circumstances could be unconstitutional. A cursory review of these cases demonstrates that the courts were concerned with the deprivation of due process of creditors who are without sufficient notice of the bankruptcy case to file a claim. Further review of the cases reveals that the alleged creditor was “known” or clearly should have been known under the circumstances. That is different from the facts of the case at bar. The confirmation of a plan binds all creditors “whether or not the creditor is im paired and whether or not the creditor files a claim. 11 U.S.C. § 1141(a).” Ravenna Industries., Inc. v. Ohio Bureau of Workers’ Compensation (In re A.C. Williams)," }, { "docid": "18623418", "title": "", "text": "Id. The Eleventh Circuit has held that publication notice is legally adequate notice to unknown creditors. Matter of GAC Corp., 681 F.2d at 1300; see also In re Chicago Pacific Corp., 773 F.2d 909 (7th Cir.1985); In re Computer Devices, Inc., 51 B.R. 471 (Bankr.D.Mass.1985). The proper inquiry in evaluating notice is whether a party acted reasonably in selecting means likely to inform persons affected, not whether each person actually received notice. Weigner v. City of New York, 852 F.2d 646, 649 (2d Cir.1988), cert. denied — U.S. -, 109 S.Ct. 785, 102 L.Ed.2d 777 (1989). It is not required that a debtor search for those who might have been or might not have been injured. In re Waterman Steamship Corp., 59 B.R. 724, 727 (Bankr.S.D.N.Y.1986). As the Supreme Court stated in Mullane, “impracticable and extended searches are not required in the name of due process.” 339 U.S. at 317-318, 70 S.Ct. at 658-659. Having reviewed the entire file and applicable case law, this Court finds that the Bankruptcy Court’s assessment in 1984 of the publication notice in this case was very accurate: the notice was “reasonably calculated, under all the circumstances, to apprise all those entities, whether known or unknown, which may assert claims against the Debtors.” Bar Date Order at 2. Based on relevant law and the specific facts and circumstances of this case, this Court does not find any basis to require a more stringent notice requirement for unknown tort claimants than for unknown trade creditors. No authority for such a distinction appears in the record and this Court is aware of no such authority. According to § 1141(d) of the Bankruptcy Code, confirmation of a Chapter 11 plan discharges the debtor from all debts which arose before the confirmation date. A discharge operates as an injunction against the commencement or continuation of aA-action against the debtor. 11 U.S.C. § 524(a)(2). “There is nothing more essential to a bankruptcy case than the preservation of the integrity of the debtor’s discharge.” In re Barbour, 77 B.R. 530, 532 (Bankr.E.D.N.C.1987). Bankruptcy Rule 3003(c)(2) requires each creditor whose claim is" }, { "docid": "3910744", "title": "", "text": "make Siouxland aware of his claim in time for it to be scheduled. Rather, his was the responsibility to at least let Siouxland know in some fashion that he had a claim. He comes too late to ■ the Court to argue that he should not be barred from filing a claim. An order confirming a plan under Chapter 11 generally operates to discharge a debtor from claims that arose prior to the date of confirmation whether or not a proof of claim is filed. 11 U.S.C. § 1141(d)(l)(A)(i). The case-law-created exception is in the instance where the debtor knew of the creditor’s claim but failed to provide the creditor notice of the Chapter 11 filing, and the creditor otherwise did not have actual knowledge of the filing in time to file a proof of claim. In re Intaco Puerto Rico, Inc., 494 F.2d 94 (1st Cir.1974); In re American Properties, Inc., 30 B.R. 247 (Bankr.D.Kan.1983); In re Sullivan Ford Sales, Inc., 25 B.R. 400 (Bankr.D.Me.1982). Knight does not come within this exception to section 1141(d) because he had actual knowledge of Siouxland’s Chapter 11 filing long before the Plan was confirmed, and such knowledge should have prompted a claim being filed. His claim accordingly is discharged by operation of section 1141(d) irrespective of whether the Iowa Statute of Limitations has tolled. In any event, even taking into account the thirty-day extension granted by section 108(c), it appears that the statute of limitations for wages, vacation pay and bonus expired in each instance before October 17, 1983, the date Knight commenced his Counterclaim. Expiration of a statute of limitations, however, does not preclude one from pleading a counterclaim as a defense of recoupment. Untimely counterclaims may be asserted on the theory of common law recoupment which survives as long as a plaintiff may assert a claim. This is true even though, as an independent counterclaim, it would be barred by an applicable statute of limitations. City of Grand Rapids, Mich. v. McCurdy, 136 F.2d 615 (6th Cir.1943). Advancing a counterclaim on the theory of recoupment does not, however, permit the" }, { "docid": "14932463", "title": "", "text": "stay to pursue the E & O coverage, and therefore relief from the stay was granted on July 29, 1998. . Bankruptcy Code § 1325(a)(4). . The math is a little inconsistent. The plan summary accompanying the confirmation order (docket entry #26) provides for $1,450 to be paid for the first 2 payments, and $1,555 for the remaining 58 payments; the total is specified as $93,090. The first amended motion to modify the plan calls for 60 plan payments of $1,555, for a total of $93,300. The additional payment to the chapter 13 trustee is $210. . Bankruptcy Code § 727(b). . Bankruptcy Code § 1141(d)(1)(A). . Bankruptcy Code § 1328(a). In addition, the discharge does not extend to any claims that would be disallowed under Bankruptcy Code § 502. . For example, if a creditor timely objects to a chapter 7 discharge, it does not extend to debts arising as the result of publication of a false financial statement (§ 523(a)(2), § 727(b)). Not all such differences are treated here since they are not relevant to this discussion. . Bankruptcy Code § 523(a)(3), § 727(b), § 1141(d)(2). . See Bankruptcy Code § 523(a). . An excellent discussion of the inequity and unconstitutionality of discharging a claim without notice or knowledge can be found in In re Texas Tamale, 219 B.R. 732, 738 (Bkrtcy.S.D.Tex.1998). In that case, Judge Greendyke wrote: ‘‘Reliable Electric Co. v. Olson Constr. Co., 726 F.2d 620 (10th Cir.1984) (discharge of claim without notice of confirmation hearing violates Fifth Amendment); In re Unioil, 948 F.2d 678 (10th Cir.1991) (bankruptcy court reversed for barring creditor’s claim who had not received notice of bar date OR of the plan's confirmation hearing): In re Leading Edge Products, 120 B.R. 616 (Bankr.D.Mass.1990) (claim not barred when creditor did not receive notice of disclosure statement or confirmation hearing); In re General Oil Distributors, Inc., 68 B.R. 603 (Bankr.E.D.N.Y.1986) (no notice of bar date or of confirmation hearing). Likewise, it is also easy to see how not informing a claimant of the bankruptcy proceedings in general would violate the fifth Amendment. In such" }, { "docid": "10166948", "title": "", "text": "1381 (1985) the Ninth Circuit held that a creditor’s documents filed in bankruptcy court constituted an informal proof of claim because they “state an explicit demand showing the nature and amount of the claim against the estate, and evidence an intent to hold the debtor liable.” In this case, Koch’s Petition to Intervene states the nature of its claim, and states an amount four times greater than the proof of claim it seeks to file now. The critical difference between this case and Pizza of Hawaii Inc., is the timing of the creditor’s motion. In Matter of Pizza of Hawaii Inc., the creditor moved to include his claim before confirmation. In this case, the debtor’s reorganization plan was confirmed more than eighteen months before Koch’s motion to include its claim. Generally, 11 U.S.C. § 1141(d)(1)(A) provides that a creditor who fails to file a claim before confirmation loses his claim even if he has no knowledge of the bankruptcy. Four Circuit Courts have held this section unconstitutional. The cases hold that in a chapter 11 bankruptcy, a creditor who fails to file a timely proof of claim loses his claim only if he had actual notice of the confirmation hearing. Broomwall Industries v. Data Design Logic Systems, 786 F.2d 401 (Fed.Cir.1986); Reliable Electric v. Olson Construction, 726 F.2d 620 (10th Cir.1984); In re Intaco Puerto Rico Inc., 494 F.2d 94 (1st Cir.1974); In re Harbor Tank Storage Co., 385 F.2d 111 (3d Cir.1967). Since Koch had actual knowledge of the case it should have filed a claim. The debtor’s failure to give Koch notice of the time for filing a claim and of confirmation excuses Koch’s failure to file a claim. Thus, Koch’s claim is not subject to the debtor’s discharge. SO ORDERED." }, { "docid": "20219962", "title": "", "text": "the Appellants’ motives behind the publication of the Notices, we conclude that sanctions were not properly imposed in this case pursuant to 11 U.S.C. §§ 524(a)(2), 1141. Our holding, however, should not be read to condone the Appellants’ conduct in this ease. The effect of a discharge in Chapter 11 bankruptcy is set forth in § 524 of the Bankruptcy Code. “Generally, a discharge in bankruptcy relieves a debtor from all pre-petition debt, and § 524(a) permanently enjoins creditor actions to collect discharged debts.” Bessette v. Avco Fin. Servs., Inc., 230 F.3d 439, 444 (1st Cir.2000); see also Nat’l Ins. Co. of N. Am. v. NGC Settlement Trust & Asbestos Claims Mgmt. Corp. (In re Nat’l Gypsum Co.), 118 F.3d 1056, 1062 n. 13 (5th Cir. 1997); Hardy v. United States (In re Hardy), 97 F.3d 1384, 1388-89 (11th Cir.1996); In re Getzoff, 180 B.R. 572, 573 (9th Cir. BAP 1995). When there is a confirmation order of a reorganization plan in bankruptcy pursuant to Chapter 11, that confirmation order discharges the debtor from all pre-confirmation claims. 11 U.S.C. § 1141(d)(1)(A). A confirmed plan binds both “the debtor ... and any creditor,” 11 U.S.C. § 1141(a), which includes entities that have “claim[s] against the debtor that arose at the time of or before the order for relief,” 11 U.S.C. § 101(10). Similarly, § 524(a)(2) provides that a discharge “operates as an injunction against ... an act[ ] to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived.” 11 U.S.C. § 524(a)(2); see also 11 U.S.C. § 727(c)(1) (stating that the “trustee, a creditor, or the United States trustee may object to the granting of a discharge”). We agree with Solow and Cherniak that they are not holders of pre-confirmation claims discharged in bankruptcy who would normally be bound by the provisions of the Plan, as only a preconfirmation creditor or holder of such a claim is bound by the plain language of the injunctive provisions of the Plan. Kalikow’s Plan specifically provided that it “bind[s] all" }, { "docid": "16095138", "title": "", "text": "in time for such timely filing.” 11 U.S.C. § 523(a)(3)(A). Section 1141(d)(2) makes clear that § 523(3) affects only individual debtors in Chapter 11, not corporate debtors, stating that ”[t]he confirmation of a plan does not discharge an individual debtor from any debt excepted from discharge under section 523 of this title.” 11 U.S.C. § 1141(d)(2). . Federal Rule of Bankruptcy Procedure 9006(b)(1) allows late filed claims to be deemed timely upon a showing of “excusable neglect.” Such a showing requires court determination that \"neglect” gave rise to late filing of the claim, and that the neglect was \"excusable” after considering the surrounding circumstances. See Pioneer Investment Services Co. v. Brunswick Assoc., 507 U.S. 380, 387-397, 113 S.Ct. 1489, 1494-1499, 123 L.Ed.2d 74 (1993). \"Neglect” is present when tardiness in filing the proof of claim was due to circumstances outside of the claimant’s control. Id. at 388, 113 S.Ct. at 1494 — 1495. Since Haagen-Dazs was not provided with notice of the confirmation date, its failure to file a proof of claim within the bar date established in the Plan constitutes \"neglect.” In determining whether the neglect was \"excusable,” the Court must consider “the danger of prejudice to the debtor, the length of its delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Id. at 395, 113 S.Ct. at 1498. Equitable considerations warrant a finding of “excusable neglect\" with respect to Haagen-Dazs, given the constitutional magnitude of its justification for failure to comply with the bar date, as well as the absence of a return on its claim if subordinated under the Plan. Although this conclusion may delay payments to the general unsecured claimants, such a disruption to administration of the estate does not justify infringement of Haagen-Dazs’ due process rights. See In re Intaco Puerto Rico, Inc., 494 F.2d 94, 100 (1st Cir.1974) (holding that a known creditor without notice of plan confirmation was not barred from filing a late claim, although \"some problems would be" }, { "docid": "1142234", "title": "", "text": "chapter 11 case in time to file timely a proof of claim. An order confirming a plan under chapter 11 generally operates to discharge a debtor from claims that arose prior to the date of confirmation. 11 U.S.C.A. § 1141(d)(1) (1979). In the instant case, however, the plaintiffs did not receive notice or have actual knowledge of Sullivan’s case until well after the plan was confirmed. “The general issue posed by section 1141(d)(1) is whether a creditor or equity holder can be deprived of its claim against or interest in the debtor by operation of law if the trustee or debtor has failed to give the creditor or equity holder notice by the best available means of the chapter 11 case and of the need to file a proof of claim or proof .of interest.” 5 Collier on Bankruptcy ¶ 1141.-01[b], at 1141-11 (15th ed. 1982). Where the creditor does not have actual knowledge of the reorganization case, the rule in the First Circuit is quite clear. In a chapter X case under the old Act the First Circuit Court of Appeals said: We therefore hold that the failure of the trustee, knowing of the creditor’s claim, to mail the various notices required of chapter X, precludes a finding that the creditor is barred by confirmation of the reorganization plan from presenting his claim to a bankruptcy court.... As the Supreme Court has stated, the creditor has a right to assume that proper and adequate notice will be provided before his claims are forever barred.... ” In re Intacto Puerto Rico, Inc., 494 F.2d 94, 99 (1st Cir.1974). The plaintiffs in this proceeding, not having received official notice of Sullivan’s reorganization case and not having actual knowledge of the case in time to file a proof of claim before confirmation, are not barred from pursuing their claim. Appropriate orders will be entered. . The order confirming Sullivan’s reorganization plan dated August 6, 1980 states in part: That all holders of claims against or of interests in the debtor ... are hereby perpetually enjoined and stayed from pursuing or attempting to" }, { "docid": "18797541", "title": "", "text": "OPINION AND ORDER STANTON, District Judge. This appeal from the decision of the Bankruptcy Court, 141 B.R. 552 (Bankr.S.D.N.Y.1992), involves the question of adequate notice to seamen, who had been exposed to asbestos on Waterman vessels, of their need to file claims in Waterman’s bankruptcy proceedings. The factual and procedural background is set forth in the published opinion of the Bankruptcy Court. DISCUSSION Under § 1141 of the Bankruptcy Code, the confirmation of a chapter 11 plan of reorganization discharges the debtor from any debt that arose prior to confirmation, unless the debt is exempt under the Code, plan or order confirming the plan. In re Brooks Fashion Stores, Inc., 124 B.R. 436, 445 (Bankr.S.D.N.Y.1991). Due process requires the provision of reasonable notice to those parties whose claims are to be discharged: “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). Reasonable notice of a bankruptcy proceeding includes notice of the bar date for filing a proof of claim. See In re Spring Valley Farms, Inc., 863 F.2d 832, 834 (11th Cir.1989) (“due process prevents Section 1141 from being read to extinguish their claims when no notice of the bar date for filing a proof of claim has been sent.”); In re Turning Point Lounge, LTD., 111 B.R. 44, 47 (Bankr.W.D.N.Y.1990) (“The courts which have addressed this issue have uniformly held that the debt owed to a creditor who was not scheduled, did not receive notice of the bar date for filing a proof of claim and therefore, could not participate in the reorganization process is not bound by the plan and its claim is not discharged notwithstanding § 1141(c) and (d)(1)(A)(i)”). The proper inquiry in evaluating the adequacy of notice is whether a party “acted reasonably in selecting means likely to inform persons affected.”" } ]

[ { "docid": "7731777", "title": "", "text": "filed by the trustee here in each of the taxable years 1963-1970. . See, e. g., Forms 966 and 1099L. . The taxpayer does not contest that he was required by § 6012(b) (3) to file a Form 1120. . The taxpayer points out that § 6011(e) of the Code requires “that returns of income taxes be made whether or not there is tax liability.” However, this provision only tends to confirm that a “return of income” and a “return of tax” are one and the same thing. . See, e. g., Revenue Act of 1916, c. 463, 39 Stat. 756, Sec. 13(c). . See, e. g., In re Heller, Hirsh & Co., 258 F. 208 (2d Cir. 1919). . Treasury Regulations 86, Art. 52-2, promulgated under the Revenue Act of 1934, broadly construed the statutory term “operating” to provide that, if a receiver had full custody and control over the business and property of the corporation, he was to be deemed to be operating the business within the meaning of the statute. The Regulations have contained substantially the same interpretation since. . 28 U.S.C. § 960. . Prior to 1948, section 960 made reference only to state and local taxes. In 1948, the reference to federal taxes was added. . See 3A Collier, Bankruptcy § 62.14, p. 1523-26. . See Brown v. Collector of Taxes for District of Columbia, 101 U.S.App.D.C. 200, 247 F.2d 786, 788 n. 9 (1957). . 312 U.S. 156, 163, 61 S.Ct. 542, 85 L.Ed. 642 (1941). . 266 F.2d 631 (9th Cir. 1959). . In Sampsell, the trustee was held to be, in effect, an operating trustee. . See Nicholas v. United States, 384 U.S. 678, 694 n. 28, 86 S.Ct. 1674, 16 L.Ed.2d 853 (1966). . 332 F.Supp. 1248 (S.D.Fla.1971), aff’d 465 F.2d 978 (5th Cir. 1972). The district court reversed the referee on jurisdictional grounds, not on the basis of the question in issue here. In so doing, the district court stated: “The Court does * * * take note of the troublesome problems in the administration of bankruptcy which are raised" } ]

[ { "docid": "11450078", "title": "", "text": "He did not continue the bankrupt’s business in any sense, but instead chose to dispose of the physical equipment in accordance with his duty in such manner as to realize the highest return for the estate he was administering. Section 47, sub. a the Bankruptcy Act, 11 U.S.C.A. § 75, sub. a. In our opinion the fact that these assets had previously been utilized by the bankrupt in the conduct of a business no longer in existence has no materiality in the case. His activities did not render him taxable under the terms of the California Retail Sales Act, and, furthermore, did not subject him to the provisions of 28 U.S.C.A. § 124a, above quoted, to the effect that Trustees appointed by United States Courts to conduct any business shall be subject to state and local taxes applicable to such business.” Also, in California State Board of Equalization v. Goggin, supra, the court pointed out that when the trustee disposed of certain trucks that had been used in a business that had been engaged in the manufacture and sale of cabinets at retail, the sale was not made in the course of conducting a business but in the process of putting an end to a business. (191 F.2d at page 729). This is not to say that a trustee who is liquidating the assets of a corporation may not also be conducting a business. The fact that a liquidating trustee may sometimes be conducting the business of the corporation is illustrated by the case of United States v. Sampsell, 266 F.2d 631 (9th Cir. 1959). In Sampsell the bankrupt was a real estate corporation, and the bankruptcy administration, which commenced in 1937, contin ued for more than 17 years. Although on May 26, 1952 the referee made an order of liquidation directing the trustee to sell the assets and close the estate, the trustee thereafter during 1952, 1953, and 1954 arranged for the sale of the remainder of the property, received interests on trust deeds from prior sales of property, received royalties from oil leases, and received proceeds from various" }, { "docid": "4638622", "title": "", "text": "we have both the power and the duty to resolve the conflict, we granted certiorari. 488 U.S. -, 109 S.Ct. 554, 102 L.Ed.2d 581 (1988). The Goggin cases concerned the attempt by the California State Board of Equalization, the petitioner here, to assess sales and use taxes on a bankruptcy liquidation sale. In Goggin I, 191 F.2d 726 (CA9 1951), cert. denied, 342 U.S. 909, 72 S.Ct. 302, 96 L.Ed. 680 (1952), the Court of Appeals for the Ninth Circuit rejected the Board’s attempt to assess a nondiscriminatory sales tax imposed on retailers to a liquidation sale made by a bankruptcy trustee under court order. Although the court based its decision on a construction of state law that excluded the trustee from the definition of retailer, Judge Fee in concurrence wrote that the assessment constituted an unlawful tax upon court processes. Six years later, Judge Fee, writing for the Circuit panel in Goggin II, made those views law. 245 F.2d 44 (CA9), cert. denied, 353 U.S. 961, 77 S.Ct. 863, 1 L.Ed.2d 910 (1957). At issue was a California law which required the bankruptcy trustee to collect and remit use taxes imposed on the use of goods from a liquidation sale on which no sales tax had been paid. The court held the tax unlawful, finding that while it was nondiscriminatory it nonetheless burdened the “essential processes” of the bankruptcy court. The Goggin opinions were based on two premises, each of which respondent argues supports the judgment here. First, the court held that a tax on liquidation sales places a burden on the federal function of the bankruptcy court and therefore violates principles of intergovernmental tax immunity first recognized in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819). Second, it found that a federal statute specifically authorizing the States to impose taxes on business operations of the bankruptcy trustee negated by implication their power to tax bankruptcy liquidations. Neither argument is persuasive. The argument that a tax on a bankruptcy liquidation sale places an undue burden on a governmental operation derives from the once established view" }, { "docid": "15969813", "title": "", "text": "the extent of § 422.42(12)(b), it would be unnecessary, since this very sale would also be exempt under § 422.42(12)(a). The sale of the non-inventory assets would be both a nonrecurring event and outside the “regular course of the seller’s business.” Iowa Admin.Code, § 730, ch. 18.28(1), and thus would be exempt from the retail sales tax under § 422.42(12)(a). Turning to the sale of the inventory, it can be seen that the “casual sales” exemption would likewise not be necessary because in the case of a sale of a business to one who is going to carry on that business, the inventory is sold for purposes of “resale” and thus would not even come within the definition of a taxable retail sale. Iowa Code § 422.43. Giving § 422.42(12)(b) a viable meaning requires that it be the sole “casual sales” exemption applicable to liquidations of an entire business. . 28 U.S.C. § 960, c. 646, 62 Stat. 927 (1948), formerly 28 U.S.C. § 124a, c. 585, 48 Stat. 993 (1934). . The Third Circuit is in accord with this view. In re I.J. Knight Realty Corporation, 501 F.2d 62 (3rd Cir.1974). The Ninth Circuit claims to have held that § 960 does not reach sales by liquidating trustees. For example, in California State Board of Equalization v. Goggin, 191 F.2d 726 (9th Cir.1951) (Goggin I), the court held that a liquidating trustee was not making sales in the course of conducting a business but rather was in the process of putting an end to a business. Goggin I, 191 F.2d at 729. The court then went on to interpret the California retail sales tax law to be applicable only to persons “engaged in the business of making sales at retail.” Goggin I, 191 F.2d at 729. While the court was using the language of § 960 in holding that a liquidating trustee was not “conducting a business,” it is arguable that the court simply construed the State law to exclude sales made by such trustees, and thus did not reach the federal question. Goggin I, 191 F.2d at 730." }, { "docid": "4638621", "title": "", "text": "Justice STEVENS delivered the opinion of the Court. Enmeshed in a tangled skein of procedural and state law issues is a ruling on an important federal question that was critical to the decision of the Court of Appeals in this case. The court’s ultimate holding was that a bankruptcy court’s injunction against the assessment of a state sales tax upon the proceeds of a trustee’s liquidation sale of an inventory of skis also barred the collection of a use tax from the purchaser’s lessees. In the process of reaching its decision, the Ninth Circuit rejected an argument that a case well-known to California bankruptcy lawyers as “Goggin II” was wrongly decided. The three-judge panel that heard the case concluded that it was not within its power — “and not within its heart — to change a rule of this circuit that has been in force for over thirty years.” In re China Peak Resort, 847 F.2d 570, 572 (1988). Because the rule of “Goggin II” conflicts with the rule applied in other Circuits, and because we have both the power and the duty to resolve the conflict, we granted certiorari. 488 U.S. -, 109 S.Ct. 554, 102 L.Ed.2d 581 (1988). The Goggin cases concerned the attempt by the California State Board of Equalization, the petitioner here, to assess sales and use taxes on a bankruptcy liquidation sale. In Goggin I, 191 F.2d 726 (CA9 1951), cert. denied, 342 U.S. 909, 72 S.Ct. 302, 96 L.Ed. 680 (1952), the Court of Appeals for the Ninth Circuit rejected the Board’s attempt to assess a nondiscriminatory sales tax imposed on retailers to a liquidation sale made by a bankruptcy trustee under court order. Although the court based its decision on a construction of state law that excluded the trustee from the definition of retailer, Judge Fee in concurrence wrote that the assessment constituted an unlawful tax upon court processes. Six years later, Judge Fee, writing for the Circuit panel in Goggin II, made those views law. 245 F.2d 44 (CA9), cert. denied, 353 U.S. 961, 77 S.Ct. 863, 1 L.Ed.2d 910 (1957). At" }, { "docid": "15969798", "title": "", "text": "burden imposed on the Trustee is the administrative difficulty created by allowing the State to tax the sale. The Trustee is not personally liable for the tax because it is an expense of administering the estate. The tax will be a part of the proceeds of the sale, and the Trustee will only be required to set aside from the sale proceeds monies equal to the amount of the tax. The tax can never exceed three percent of the gross proceeds of the sale, and thus there will always be funds available to remit to the State. The question of whether a retail sales tax assessed on a bankruptcy liquidation sale is a tax upon the processes of the bankruptcy courts is not subject to easy determination. The eases holding that such a tax would be a levy upon court processes provide little analysis. In California State Board of Equalization v. Goggin, 245 F.2d 44, 46 (9th Cir.1957) (Goggin II), the court stated that the cardinal purpose of bankruptcy liquidation is to equitably distribute the debtor’s assets to his creditors, and that “any act which hinders, delays, or burdens the accomplishment of this vital purpose constitutes an unlawful interference with the process of the court of bankruptcy and is invalid.” Without any further explanation, the court, in Goggin II, concluded that a sales tax levied on a court ordered liquidation sale is an unlawful burden on the es sential processes of the bankruptcy court. Goggin II, 245 F.2d at 46. The author of Goggin II, however, had himself previously recognized that “a tax may be levied upon specific property in the hands of a trustee in bankruptcy.” California State Board of Equalization v. Goggin, 191 F.2d 726, 730 (9th Cir.1951) (Goggin I) (Fee concurring) (citing Swarts v. Hammer, 194 U.S. 441, 24 S.Ct. 695, 48 L.Ed. 1060 (1904)). In both the case of a tax on property held by the trustee and a sales tax on a liquidation sale, the size of the estate is diminished because of the tax. In both eases, the Trustee will be required to set" }, { "docid": "11450076", "title": "", "text": "be subject to all Federal, State, and local taxes applicable to such business to the same extent as if it were conducted by an individual or corporation.” It is clear that if the trustee in this case had conducted the business of Super-grate within the meaning of 28 U.S.C. § 960, he would have incurred obligations for franchise taxes imposed by Section 23151 et seq. of the California Revenue and Taxation Code. Cf. Nicholas v. United States, 384 U.S. 678, 86 S.Ct. 1674, 16 L.Ed.2d 853 (1966); Boteler v. Ingels, 308 U.S. 57, 60 S.Ct. 29, 84 L.Ed. 78 (1939); Fifth Street Building v. McColgan (1941), 19 Cal.2d 143, 119 P.2d 729, appeal dismissed and certiorari denied, 316 U.S. 648, 62 S.Ct. 1298, 86 L.Ed. 1731 (1942). However, this court is of the view that the trustee in this case was neither “operating the property or business” of Supergrate within the meaning of Section 25403 of the California Revenue and Taxation Code nor “conducting any business” within the meaning of 28 U.S.C. § 960. Cf. California State Board of Equalization v. Goggin, 191 F.2d 726 (9th Cir. 1951), cert. denied, 342 U.S. 909, 72 S.Ct. 302, 96 L.Ed. 680 (1952); State Board of Equalization v. Boteler, 131 F.2d 386 (9th Cir. 1942). In State Board of Equalization v. Boteler, supra, the bankrupt was a wholesale and retail bakery. The trustee sought to sell the assets of the bankrupt corporation which consisted of furniture, fixtures, and equipment and other miscellaneous items of the business. The California State Board of Equalization contended that the sales by the trustee constituted carrying on business under 28 U.S.C. § 124a, the predecessor of 28 U.S.C. § 960, and that the trustee was required to take out a retail tax permit and collect and remit sales taxes. In rejecting the Board’s contention the court said (page 388): “It is, of course, not a fact that the Referee in the circumstances of this case was engaged or was about to become ‘engaged in the business of making sales at retail * * * of tangible personal property’." }, { "docid": "15971058", "title": "", "text": "denied, 353 U.S. 961, 77 S.Ct. 863, 1 L.Ed.2d 910 (1957) (hereinafter Goggin II). State tax laws which impose sales tax on court ordered bankruptcy liquidation sales burden the chapter 7 liquidation process. Id.; California State Board of Equalization v. Goggin, 191 F.2d 726 (9th Cir.1951), cert denied, 342 U.S. 909, 72 S.Ct. 302, 96 L.Ed. 680 (1952); Babb v. Oklahoma (In re Rhea), 17 B.R. 789 (Bkrtcy.W.D.Okl.1982); In re Gene Adams Funeral Service, Inc., Bankr.L.Rep. (CCH) ¶ 63,455 (U.S.Dist.Ct.W.D.Okla.1970) (summary); In re Payne, Bankr.L.Rep. (CCH) ¶ 58,101 (U.S.Dist.Ct.N.D.Ohio 1953) (summary). Contra, Blackmon v. Nichols (In re Hatfield Construction Co.), 494 F.2d 1179 (5th Cir.1974); City of New York v. Jersawit (In re heavy), 85 F.2d 25 (2d Cir.1936). The imposition of sales tax is not only administratively burdensome but also economically detrimental to the bankruptcy estate. The attempt by the State of Maine to place the tax incidence on the auctioneer does not affect this conclusion. The court in Goggin II found state sales tax burdensome whether it was called a sales tax or a use tax and whether the trustee collected it or the purchaser remitted it directly to the state. As stated by the Court of Appeals for the Ninth Circuit, Whatever the protean forms of a statute may be, or whatever subtle ingenuity of legislative tax advisors may suggest now or in the future, the tax is in fact based upon the sale; the sale is for the essential purpose of liquidating; the liquidation process was burdened thereby. The paramount authority in the bankruptcy field can be limited only by Congress. Goggin II, 245 F.2d at 46. An appropriate order will be entered. . Oliver also presents an estoppel argument which the court does not reach. . The Bureau of Taxation argues that 28 U.S. C.A. § 960 (1968) specifically allows such taxation. This contention is without merit. Section 960 provides: “Any officers and agents conducting any business under authority of a United States court shall be subject to all Federal, State and local taxes applicable to such businesses to the same extent as if it" }, { "docid": "15971059", "title": "", "text": "a use tax and whether the trustee collected it or the purchaser remitted it directly to the state. As stated by the Court of Appeals for the Ninth Circuit, Whatever the protean forms of a statute may be, or whatever subtle ingenuity of legislative tax advisors may suggest now or in the future, the tax is in fact based upon the sale; the sale is for the essential purpose of liquidating; the liquidation process was burdened thereby. The paramount authority in the bankruptcy field can be limited only by Congress. Goggin II, 245 F.2d at 46. An appropriate order will be entered. . Oliver also presents an estoppel argument which the court does not reach. . The Bureau of Taxation argues that 28 U.S. C.A. § 960 (1968) specifically allows such taxation. This contention is without merit. Section 960 provides: “Any officers and agents conducting any business under authority of a United States court shall be subject to all Federal, State and local taxes applicable to such businesses to the same extent as if it were conducted by an individual or corporation.” The purpose of section 960 is to eliminate the competitive advantage which would be given to businesses operated under court order if they were exempt from taxes. H.R.Rep. No. 1138, 73d Cong., 2d Sess. (1934); Palmer v. Webster & Atlas National Bank, 312 U.S. 156, 163, 61 S.Ct. 542, 545, 85 L.Ed. 652 (1940). Congress limited the scope of the section to officers and agents conducting businesses. A bankruptcy trustee who liquidates the assets of a bankruptcy estate under court order is not conducting a business. Therefore, section 960 is not applicable. See, e.g., California State Board of Equilization v. Goggin, 191 F.2d 726, 730 (9th Cir.1951), cert. denied, 342 U.S. 909, 72 S.Ct. 302, 96 L.Ed. 680 (1952); Babb v. Oklahoma (In re Rhea), 17 B.R. 789, 790-92 (Bkrtcy.W.D.Okl.1982); In re Samoset Associates, 14 B.R. 408, 413-14, 5 C.B.C.2d 1052, 1057-58 (Bkrtcy.D.Me.1981). But cf. Missouri v. Gleick, 135 F.2d 134, 136-37 (8th Cir. 1943) (unemployment compensation); In re Mid America Co., 31 F.Supp. 601, 606 (S.D.Ill.1939) (unemployment" }, { "docid": "15969811", "title": "", "text": "sale at least once. . The Trustee stated in his brief that this section was not applicable to his case. Given the Court’s finding that the liquidation auctions involved retail sales, this is a costly concession. Once a sale is determined to be at retail — as is the case here — it is taxable, and an express exemption must be found in order to avoid the tax. The Court will analyze the liquidation sales under § 422.42(12)(b). . It seems likely that either the Debtors or the Trustee would be deemed the “retailer” within § 422.42(12)(b). If this were not the case, then a trustee who could sell another’s business as a going concern to a buyer would not be able to make use of the “casual sales” exemption found in § 422.42(12)(b). This Court believes that such an inconsistent application of the statute could be seen as an unfair discrimination against sales made by any type of trustee or receiver, e.g. note 2, supra. . It is worth noting that under § 422.42(12)(b) there is no taxable sale if A sells his business to B who takes over and continues it. This makes sense as to the inventory, since A is selling a stock of goods to B who is then going to turn around and resell those goods to the public. In other words, the inventory is being sold for purposes of “resale” within the meaning of Iowa Code § 422.42(3), and is therefore not a taxable retail sale. Iowa Code § 422.43. Where, however, the inventory is sold off to consumers and users — where the business is not sold as a going concern — exempting the sales from the tax would frustrate the State’s taxing policy, (see supra note 9). .Section 422.42(12)(b) is a limitation upon the “casual sales” exemption allowed in § 422.-42(12)(a). To demonstrate this, the contrary should be assumed; that § 422.42(12)(b) simply adds a new casual sales exemption to the Statute, freeing the sale of a business as a going concern by A to B from tax liability. If this were" }, { "docid": "2376769", "title": "", "text": "operation of former Section 124a of Title 28.” California State Board of Equalization v. Goggin, 9 Cir., 191 F.2d 726, 729, 27 A.L.R.2d 1211, certiorari denied 342 U.S. 909, 72 S.Ct. 302, 96 L.Ed. 680. In other words, if the Trustee had never carried on the business and made retail sales, no one could be taxed on a liquidation sale, whatever the impost was called. A court of bankruptcy cannot be controlled by the declaration that a person engaged in making retail sales becomes a ‘retailer’ and thereby purchasers from him become liable to pay and he to collect this tax on liquidation sales not only on his stock of goods but upon sales of his furniture, fixtures and equipment. The fact that the state may hold this statute reasonable as to its citizens does not change the nature of a sale pursuant to an order of liquidation of a bankruptcy court into an ordinary sale in the conduct of business. The power of Congress is paramount. And the distinction between sales “in the course of business” and “in liquidation” is real and patent. Affirmed. . See California State Board of Equalization v. Goggin, 9 Cir., 191 F.2d 726, 27 A.L.R.2d 1211, certiorari denied 342 U.S. 909, 72 S.Ct. 302, 96 L.Ed. 680; State Board of Equalization of State of California v. Boteler, 9 Cir., 131 F.2d 386; Ingels v. Boteler, 9 Cir., 100 F.2d 915, affirmed Boteler v. Ingels, 308 U.S. 57, 60 S.Ct. 29, 84 L.Ed. 78. Cf. California State Board of Equalization v. Goggin, 9 Cir., 183 F.2d 489. . This was in 1951, in California State Board of Equalization v. Goggin, 9 Cir., 191 F.2d 726, 27 A.L.R.2d 1211, certiorari denied 342 U.S. 909, 72 S.Ct. 302, 96 L.Ed. 680. . See Cal.Stat., Revenue and Taxation Code, West’s Ann.Rev. & Tax.Code, § 6051, sales tax; § 6201, use tax. . 28 U.S.C.A. § 960. . California State Board of Equalization v. Goggin, 9 Cir., 191 F.2d 726, 27 A.L.R. 2d 1211, certiorari denied 342 U.S. 909, 72 S.Ct. 302, 90 L.Ed. 080. . California State Board" }, { "docid": "15969790", "title": "", "text": "Giving § 422.42(12)(b) a viable meaning requires that for both inventory and non-inventory assets it be the exclusive source for the “casual sales” exemption in the context of a sale of an entire business. This being the case, the Court finds that all of the retail sales which took place at the bankruptcy liquidations of the Debtors’ property are outside the “casual sales” exemption, and therefore are subject to the retail sales tax. DIVISION III Having determined that the liquidation sales held by the Trustee are subject to the Iowa retail sales tax, the Court must now consider whether the imposition of such a tax is permissible under federal law. The first issue presented is the reach of 28 U.S.C. § 960, which subjects federal officers acting under authority of a United States Court to applicable state and local taxes. Section 960 reads as follows: Any officers and agents conducting any business under authority of a United States Court shall be subject to all federal, state, and local taxes applicable to such business to the” same extent as if it were conducted by an individual or corporation. The primary thrust of this statute was to equalize the tax status of businesses being operated as going concerns by federal receivers with the tax status of their competitors. Palmer v. Webster & Atlas National Bank of Boston, 312 U.S. 156, 162-163, 61 S.Ct. 542, 545, 85 L.Ed. 642 (1940). Congress enacted § 960 against a backdrop of a number of recent lower federal court decisions which had held that a “federal receiver operating a business (was) exempt from state sales tax.” Palmer, 156 U.S. at 163, 61 S.Ct. at 545. Congress felt that absent equal tax treatment, federal receivers enjoyed a competitive advantage and states lost thousands of dollars of revenue per month. Id. The Supreme Court, however, has never faced the question of the applicability of § 960 to eases involving liquidation sales where the trustee does not operate a debt- or’s business as a going concern. Palmer, supra, considered whether a trustee operating one bankrupt railroad was liable for additional" }, { "docid": "2376768", "title": "", "text": "by the previous case. It could have been raised there on parallel facts between the same parties. If it is not res adjudícala, the doctrine of stare decisis might well control our action. There is considerable sophistry in the definition whereby the Trustee and the purchaser are claimed to be liable for any tax on such a transaction, as was pointed out in our previous opinion. Neither the Trustee nor the purchaser would be liable upon a liquidation sale alone. “The tax measure involved is imposed upon all ‘retailers.’ A ‘retailer’ is defined as, inter alia, every person engaged in the business of making sales at retail of tangible personal property. In 1945, some years after the decision in State Board of Equalization v. Boteler, supra, Section 6005, which defines those included within the meaning of the word ‘person’, as used in the act, was amended and the words ‘trustee’ and ‘United States’ were added. It is contended that these changes impose the tax upon liquidation sales made by a trustee in bankruptcy through the operation of former Section 124a of Title 28.” California State Board of Equalization v. Goggin, 9 Cir., 191 F.2d 726, 729, 27 A.L.R.2d 1211, certiorari denied 342 U.S. 909, 72 S.Ct. 302, 96 L.Ed. 680. In other words, if the Trustee had never carried on the business and made retail sales, no one could be taxed on a liquidation sale, whatever the impost was called. A court of bankruptcy cannot be controlled by the declaration that a person engaged in making retail sales becomes a ‘retailer’ and thereby purchasers from him become liable to pay and he to collect this tax on liquidation sales not only on his stock of goods but upon sales of his furniture, fixtures and equipment. The fact that the state may hold this statute reasonable as to its citizens does not change the nature of a sale pursuant to an order of liquidation of a bankruptcy court into an ordinary sale in the conduct of business. The power of Congress is paramount. And the distinction between sales “in the course" }, { "docid": "23279365", "title": "", "text": "and because we have both the power and the duty to resolve the conflict, we granted certiorari. 488 U. S. 992 (1988). The Goggin cases concerned the attempt by the California State Board of Equalization, petitioner here, to assess sales and use taxes on a bankruptcy liquidation sale. In Goggin I, 191 F. 2d 726 (1951), cert. denied, 342 U. S. 909 (1952), the Court of Appeals for the Ninth Circuit rejected the Board’s attempt to assess a nondiscriminatory sales tax imposed on retailers to a liquidation sale made by a bankruptcy trustee under court order. Although the court based its decision on a construction of state law that excluded the trustee from the definition of retailer, Judge Fee in concurrence wrote that the assessment constituted an unlawful tax upon court processes. Six years later, Judge Fee, writing for the Circuit panel in Goggin II, made those views law. 245 F. 2d 44, cert. denied, 353 U. S. 961 (1957). At issue was a California law which required the bankruptcy trustee to collect and remit use taxes imposed on the use of goods from a liquidation sale on which no sales tax had been paid. The court held the tax unlawful, finding that while it was nondiscriminatory it nonetheless burdened the “essential processes” of the bankruptcy court. The Goggin opinions were based on two premises, each of which respondent argues supports the judgment here. First, the court held that a tax on liquidation sales places a burden on the federal function of the bankruptcy court and therefore violates principles of intergovernmental tax immunity first recognized in McCulloch v. Maryland, 4 Wheat. 316 (1819). Second, it found that a federal statute specifically authorizing the States to impose taxes on business operations of the bankruptcy trustee negated by implication their power to tax bankruptcy liquidations. Neither argument is persuasive. The argument that a tax on a bankruptcy liquidation sale places an undue burden on a governmental operation derives from the once established view that a state tax on income or assets an individual receives from a contract with the Federal Government constituted" }, { "docid": "11450077", "title": "", "text": "California State Board of Equalization v. Goggin, 191 F.2d 726 (9th Cir. 1951), cert. denied, 342 U.S. 909, 72 S.Ct. 302, 96 L.Ed. 680 (1952); State Board of Equalization v. Boteler, 131 F.2d 386 (9th Cir. 1942). In State Board of Equalization v. Boteler, supra, the bankrupt was a wholesale and retail bakery. The trustee sought to sell the assets of the bankrupt corporation which consisted of furniture, fixtures, and equipment and other miscellaneous items of the business. The California State Board of Equalization contended that the sales by the trustee constituted carrying on business under 28 U.S.C. § 124a, the predecessor of 28 U.S.C. § 960, and that the trustee was required to take out a retail tax permit and collect and remit sales taxes. In rejecting the Board’s contention the court said (page 388): “It is, of course, not a fact that the Referee in the circumstances of this case was engaged or was about to become ‘engaged in the business of making sales at retail * * * of tangible personal property’. He did not continue the bankrupt’s business in any sense, but instead chose to dispose of the physical equipment in accordance with his duty in such manner as to realize the highest return for the estate he was administering. Section 47, sub. a the Bankruptcy Act, 11 U.S.C.A. § 75, sub. a. In our opinion the fact that these assets had previously been utilized by the bankrupt in the conduct of a business no longer in existence has no materiality in the case. His activities did not render him taxable under the terms of the California Retail Sales Act, and, furthermore, did not subject him to the provisions of 28 U.S.C.A. § 124a, above quoted, to the effect that Trustees appointed by United States Courts to conduct any business shall be subject to state and local taxes applicable to such business.” Also, in California State Board of Equalization v. Goggin, supra, the court pointed out that when the trustee disposed of certain trucks that had been used in a business that had been engaged in" }, { "docid": "7054697", "title": "", "text": "involved, legislation should receive a construction which permits both to function with a minimum of interference each with the other. Metcalf & Eddy v. Mitchell, 1926, 269 U.S. 514, 46 S.Ct. 172, 70 L.Ed. 384. Affirmed. . Title 11 U.S.C.A. § 701 et seq. . California Revenue and Taxation Code, § 6001 et seq. . Consult California State Board of Equalization v. Goggin, 9 Cir., 1950, 183 F.2d 489, certiorari denied 340 U.S. 891, 71 S.Ct. 207. . California Revenue and Taxation Code, § 6051. . California Revenue and Taxation Code, § 6015, as amended by Cal.Stats., 1943, e. 699, § 3, p. 2455, c. 822, § 1, p. 2620. See later amendment Cal.Stats.1949, c. 728, § 1.5. . Cal.Stats.1945, ch. 926, § 1. . “Any receiver, liquidator, referee, trustee, or other officers or agents appointed by any United States court who is authorized by said court to conduct any business, or who does conduct any business, shall, from and after the enactment of this Act, be subject to all State and local taxes applicable to such business the same as if such business were conducted by an individual or corporation * * Act of June 18, 1934, c. 585, 48 Stat. 993. See new Title 28 U.S.C.A. § 960, Act of June 25, 1948, c. 646, 62 Stat. 927. . Title 28 U.S.C.1940 ed. § 124a, see footnote 7, supra. JAMES ALGER FEE, District Judge, (concurring). The power of 'Congress to pass uniform laws in relation to bankruptcies is paramount. International Shoe Co. v. Pinkus, 278 U.S. 261, 263, 49 S.Ct. 108, 73 L.Ed. 318; U. S. Constitution, Art. I, § 8, cl. 4. The statutes so enacted emphasize the necessity of liquidation in order to make distribution of assets. Congress has given the Bankruptcy Court plenary powers to that end. 11 U.S.C.A. §§ 11, 66; Continental Illinois, National Bank & Trust Co. v. Chicago, R. I. & P. R. Co., 294 U.S. 648, 675, et seq., 55 SCt. 595, 79 L.Ed. 1110. Acting under these powers, the referee ordered a liquidating sale of certain trucks. A tax on" }, { "docid": "23279364", "title": "", "text": "Justice Stevens delivered the opinion of the Court. Enmeshed in a tangled skein of procedural and state-law issues is a ruling on an important federal question that was critical to the decision of the Court of Appeals in this case. The court’s ultimate holding was that a Bankruptcy Court’s in junction against the assessment of a state sales tax upon the proceeds of a trustee’s liquidation sale of an inventory of skis also barred the collection of a use tax from the purchaser’s lessees. In the process of reaching its decision, the Ninth Circuit rejected an argument that a case well known to California bankruptcy lawyers as “Goggin II” was wrongly decided. The three-judge panel that heard the case concluded that it was not within its power — “and not within its heart — to change a rule of this circuit that has been in force for over thirty years.” In re China Peak Resort, 847 F. 2d 570, 572 (1988). Because the rule of “Goggin II” conflicts with the rule applied in other Circuits, and because we have both the power and the duty to resolve the conflict, we granted certiorari. 488 U. S. 992 (1988). The Goggin cases concerned the attempt by the California State Board of Equalization, petitioner here, to assess sales and use taxes on a bankruptcy liquidation sale. In Goggin I, 191 F. 2d 726 (1951), cert. denied, 342 U. S. 909 (1952), the Court of Appeals for the Ninth Circuit rejected the Board’s attempt to assess a nondiscriminatory sales tax imposed on retailers to a liquidation sale made by a bankruptcy trustee under court order. Although the court based its decision on a construction of state law that excluded the trustee from the definition of retailer, Judge Fee in concurrence wrote that the assessment constituted an unlawful tax upon court processes. Six years later, Judge Fee, writing for the Circuit panel in Goggin II, made those views law. 245 F. 2d 44, cert. denied, 353 U. S. 961 (1957). At issue was a California law which required the bankruptcy trustee to collect and remit" }, { "docid": "15969814", "title": "", "text": "is in accord with this view. In re I.J. Knight Realty Corporation, 501 F.2d 62 (3rd Cir.1974). The Ninth Circuit claims to have held that § 960 does not reach sales by liquidating trustees. For example, in California State Board of Equalization v. Goggin, 191 F.2d 726 (9th Cir.1951) (Goggin I), the court held that a liquidating trustee was not making sales in the course of conducting a business but rather was in the process of putting an end to a business. Goggin I, 191 F.2d at 729. The court then went on to interpret the California retail sales tax law to be applicable only to persons “engaged in the business of making sales at retail.” Goggin I, 191 F.2d at 729. While the court was using the language of § 960 in holding that a liquidating trustee was not “conducting a business,” it is arguable that the court simply construed the State law to exclude sales made by such trustees, and thus did not reach the federal question. Goggin I, 191 F.2d at 730. See, also, in re Supergate Open Steel Flooring Co., 1 B.R. 660 (Bkrtcy.C.D.Cal.1979). . Even if Swarts stands merely for the proposition that, property in a liquidation bankruptcy held by the estate is subject to post-petition ad valorem taxes, it is still difficult to see how § 960 can be read to prohibit the levying of taxes in liquidation cases because the trustee is not “conducting a business” as a going concern. If § 960 mandates that trustees are liable for taxes only when they are operating a business on a day-to-day basis, then Congress must be held to have overruled Swarts. There is no indication that Congress intended to do any such thing. . 11 U.S.C. § 507(a)(6)(A)(i) allows a tax claim priority for prepetition taxes measured by gross receipts, such as the Iowa retail sales tax. The most sensible interpretation of 11 U.S.C. § 503(b)(l)(B)(i)’s use of the phrase “except a tax of a kind specified in section 507(a)(6)” is that it refers not to the type of tax but to the time" }, { "docid": "15969789", "title": "", "text": "the casual sales exemption of § 422.42(12)(b), and are taxable events. See, also, Iowa Admin.Code, § 730, ch. 18.-28(3), ex. L. Looking only at the sale of the Debtors’ inventory, there is no conflict between the two “casual sales” exemptions. Under both definitions, the sale of the inventory is subject to the tax. With respect to the tax status of the non-inventory assets, however, a conflict arises between the requirements found under § 422.42(12)(a) and those found under § 422.42(12)(b). Under the former section, the sale of the non-inventory assets is exempt, but under the latter section, the sale of those very same assets in the context of a liquidation of an entire business is deemed subject to the retail sales tax. Section 422.42(12)(b) is both more specific and more recent than § 422.-42(12)(a), speaking directly to the case of a retailer going out of business. More importantly, to allow a person looking to liquidate his business to seek shelter under either § 422.42(12)(a) or § 422.42(12)(b) would render the latter section a virtual nullity. Giving § 422.42(12)(b) a viable meaning requires that for both inventory and non-inventory assets it be the exclusive source for the “casual sales” exemption in the context of a sale of an entire business. This being the case, the Court finds that all of the retail sales which took place at the bankruptcy liquidations of the Debtors’ property are outside the “casual sales” exemption, and therefore are subject to the retail sales tax. DIVISION III Having determined that the liquidation sales held by the Trustee are subject to the Iowa retail sales tax, the Court must now consider whether the imposition of such a tax is permissible under federal law. The first issue presented is the reach of 28 U.S.C. § 960, which subjects federal officers acting under authority of a United States Court to applicable state and local taxes. Section 960 reads as follows: Any officers and agents conducting any business under authority of a United States Court shall be subject to all federal, state, and local taxes applicable to such business to the”" }, { "docid": "2376770", "title": "", "text": "of business” and “in liquidation” is real and patent. Affirmed. . See California State Board of Equalization v. Goggin, 9 Cir., 191 F.2d 726, 27 A.L.R.2d 1211, certiorari denied 342 U.S. 909, 72 S.Ct. 302, 96 L.Ed. 680; State Board of Equalization of State of California v. Boteler, 9 Cir., 131 F.2d 386; Ingels v. Boteler, 9 Cir., 100 F.2d 915, affirmed Boteler v. Ingels, 308 U.S. 57, 60 S.Ct. 29, 84 L.Ed. 78. Cf. California State Board of Equalization v. Goggin, 9 Cir., 183 F.2d 489. . This was in 1951, in California State Board of Equalization v. Goggin, 9 Cir., 191 F.2d 726, 27 A.L.R.2d 1211, certiorari denied 342 U.S. 909, 72 S.Ct. 302, 96 L.Ed. 680. . See Cal.Stat., Revenue and Taxation Code, West’s Ann.Rev. & Tax.Code, § 6051, sales tax; § 6201, use tax. . 28 U.S.C.A. § 960. . California State Board of Equalization v. Goggin, 9 Cir., 191 F.2d 726, 27 A.L.R. 2d 1211, certiorari denied 342 U.S. 909, 72 S.Ct. 302, 90 L.Ed. 080. . California State Board of Equalization v. Goggin, supra, Note 5. . See cases cited in Note 1. . See Cal.Stat., Revenue and Taxation Code, West’s Ann.Rev. & Tax.Code, § 6203, which imposes upon a “retailer” who is “making sales” the duty to collect the use tax, when due, from the purchaser, and § 6204, which provides that the “tax required to he collected by the . retailer constitutes a debt owed by the retailer to this State.” . See Cal.Stat., Revenue and Taxation Code, West’s Ann.Rev. & Tax.Code, § 6202, which imposes primary liability on the buyer for payment of the use tax on “tangible personal property purchased from a retailer” unless the seller has previously given the buyer a receipt therefor. . 28 U.S.C.A. § 960. . The court nowhere referred to 28 U.S. C.A. § 124a, now 28 U.S.C.A. § 960. . Compare Ingels v. Boteler, 9 Cir., 100 F.2d 915, affirmed sub. nom., Boteler v. Ingels, 308 U.S. 57, 60 S.Ct. 29, 84 L.Ed. 78, with State Board of Equalization of State of California v." }, { "docid": "15969812", "title": "", "text": "there is no taxable sale if A sells his business to B who takes over and continues it. This makes sense as to the inventory, since A is selling a stock of goods to B who is then going to turn around and resell those goods to the public. In other words, the inventory is being sold for purposes of “resale” within the meaning of Iowa Code § 422.42(3), and is therefore not a taxable retail sale. Iowa Code § 422.43. Where, however, the inventory is sold off to consumers and users — where the business is not sold as a going concern — exempting the sales from the tax would frustrate the State’s taxing policy, (see supra note 9). .Section 422.42(12)(b) is a limitation upon the “casual sales” exemption allowed in § 422.-42(12)(a). To demonstrate this, the contrary should be assumed; that § 422.42(12)(b) simply adds a new casual sales exemption to the Statute, freeing the sale of a business as a going concern by A to B from tax liability. If this were the extent of § 422.42(12)(b), it would be unnecessary, since this very sale would also be exempt under § 422.42(12)(a). The sale of the non-inventory assets would be both a nonrecurring event and outside the “regular course of the seller’s business.” Iowa Admin.Code, § 730, ch. 18.28(1), and thus would be exempt from the retail sales tax under § 422.42(12)(a). Turning to the sale of the inventory, it can be seen that the “casual sales” exemption would likewise not be necessary because in the case of a sale of a business to one who is going to carry on that business, the inventory is sold for purposes of “resale” and thus would not even come within the definition of a taxable retail sale. Iowa Code § 422.43. Giving § 422.42(12)(b) a viable meaning requires that it be the sole “casual sales” exemption applicable to liquidations of an entire business. . 28 U.S.C. § 960, c. 646, 62 Stat. 927 (1948), formerly 28 U.S.C. § 124a, c. 585, 48 Stat. 993 (1934). . The Third Circuit" } ]

[ { "docid": "22825086", "title": "", "text": "law of contracts, are to be accepted as our guide, there was no account stated between Government and taxpayer. No balance was arrived at as the re'sult of computation and agreement. Volkening v. DeGraaf, 81 N.Y. 268, 271. The Commissioner did not inform the taxpayer that the tax had been overpaid in a determinate amount. The taxpayer did not give assent either expressly or by silence to the outcome of the audit. The'essentials of an account stated in any strict or proper sen^e are lacking altogether. Toland v. Sprague, 12 Pet. 300, 333; Nutt v. United States, 125 U.S. 650, 655; Volkening v. DeGraaf, supra; Newburger-Morris Co. v. Talcott, 219 N.Y. 505, 511, 512; 114 N.E. 846. A different situation was. disclosed in the Bonwit Teller case, supra. There the certificate of over-assessment had been delivered to the taxpayer. “ Upon delivery of the certificate to plaintiff, there arose the cause of action on which this suit was brought.” Bonwit Teller & Co. v. United States, supra, p. 265. Cf. Wm. J. Friday & Co. v. United States, 61. F. (2d) 370. . The argument is made, however, that the allowance of the schedule of refunds and credits on' March 29,' 1924,. was something near to an account stated, something “ equivalent ” thereto, though not the standard article to be marked by the standard label. This doctrine of equivalence is borne out, we are told, by cases in this court and elsewhere, which were cited in the Bonwit Teller case and are again pressed upon us-now. United States v. Kaufman, 96 U.S. 567, 575; United States v. Savings Bank, 104 U.S. 728; First National Bank of Greencastle v. United States, 15 Ct. Cls. 225; They fall short by a great deal of teaching such a lésson. The Kaufman case will serve as typical of the,others, for they\" vary little in their facts. The Commissioner of Internal Revenue had been authorized by statute to make allowance to brewers for the value of tax stamps lost or wasted. He did make such an allowance, and certified his ''ruling to the Comptroller" } ]

[ { "docid": "10823689", "title": "", "text": "years. It showed the amount of the overassessment for 1918 and by appropriate reference that a large part of it had been applied and credited upon taxes for other years in three separate items, one of which was $316,701.25 taxes of 1917, and that the balance which the government claimed was due the plaintiff was $177,041.92 which, together with interest thereon in the amount of $36,638.21, or a total of $213,680.13, was paid in settlement. The plaintiff made no complaint about the transaction until more than five years afterwards, when through its attorneys it made a demand upon defendant for the amount which had been credited on the 1917 taxes and nearly six years expired before suit was begun to recover the amount thereof. Notwithstanding the recent decisions of the court, which,-in our opinion, fully cover the case now before us, the plaintiff insists that the recital of the overassessment contained in the certificate constituted an account stated in its behalf for the amount of the overassessment. We have held many times that, when an account is presented, a party thereto cannot select one or more items stated in his favor therein and ignore charges made against him even though those charges be not well founded, and that an account stated must be taken as a whole or not at all. In this particular ease, the account showed a balance of a certain amount in favor of plaintiff for which it received a cheek issued in settlement. No complaint having been made with reference thereto for over five years, it must be considered an account settled. Cf. R. H. Stearns Co. v. United States, 291 U. S. 54, 54 S. Ct. 325, 78 L. Ed. -. The plaintiff, however, seeks to recover on another and novel ground which, in our opinion, is equally unfounded. It is insisted that, if it does not have the right to recover on an account stated the cause of action was still in time for the reason that plaintiff’s claim for refund filed June 24, 1921, was not rejected until the Commissioner of Internal Revenue" }, { "docid": "7818842", "title": "", "text": "Henry A. Caesar, Harry I. Caesar, Charles Brodmerkel, Jr., in the amounts, respectively, of $26,414.54, $5,968.09, and $5,969.59.” On April 26, 1924, the Commissioner of Internal Revenue signed a schedule of refunds and credits on which the over-assessment of $12,851.23 was shown to have been applied as follows: Credit to Henry A. Caesar in satisfaction of additional assessment for 1917, $26,474.54; credit to Harry I. Caesar in satisfaction of additional assessment for 1917, $5,968.09; and credit to Charles Brodmerkel, Jr., in satisfaction of additional assessment for 1917, $5,969.59. The balance of the assessment Avas shown on the schedule t@ be refundable, and the amount thereof was duly refunded to the partnership, with interest. The plaintiff contends that the written consent of the individual partners that the amount of the assessments against them as individuals should be satisfied out of the amount of the overassessment granted to the partnership did not operate to extend the statute of limitations for the collection of such taxes beyond the period in Avhich they were legally collectible, to Avit, April 1, 1924; that since the actual application of the overassessment in favor of the partnership against the individual taxes of the partners was not accomplished until the Commissioner signed the schedules of refunds and credits on April 26, 1924, the collections were made out of time and the amounts thereof are refundable to plaintiff. This precise question has been considered by the court .in numerous cases and has been decided adversely to the plaintiff’s contention. Naumkeag Steam Cotton Co. v. United States, 76 C. Cls. 687, 2 Fed. Supp. 126 (certiorari denied); David Daube v. United States, 75 C. Cls. 633, 1 Fed. Supp. 771 (affirmed), 289 U. S. 367; R. H. Stearns Co. v. United States, 77 C. Cls. 264, 2 Fed. Supp. 773 (affirmed), 291 U. S. 54; Madeira Embroidery Co. v. United States, 78 C. Cls. 637, 5 Fed. Supp. 420. The deficiency assessments against the individual partners ■ were timely made. Within the period within which they were legally collectible the partnership, acting through the two surviving 23a]rt-ners and the executor" }, { "docid": "14917644", "title": "", "text": "H. Stearns Co. v. United States, 77 C.Cls. 264, affirmed, 291 U.S. 54; and also by the opinion of this court in the case of Naumkeag Steam Cotton Co. v. United States, 76 C.Cls. 687 (certiorari denied), that it seems unnecessary to again repeat them. It may be noted, however, that the view which the writer took with reference to sections 607 and 609 of the Revenue Act of 1928 in the concurring opinion in the Naumkeag case, supra, namely, that these sections did not apply where the taxpayer of his own volition and at his own request seeks and consents to have certain credits made upon overassessments, was affirmed in the Stearns case, supra. Moreover, the effect of the estoppel was to prevent the plaintiff availing himself of the statute of limitations on the collection of the deficiencies. If there should be any doubt about the application of the doctrine of estoppel to the case at bar (and we do not think there is), it is clear that plaintiff’s cause of action is, under the rule laid down in the Steams cease, barred by the statute of limitations. Plaintiff relies on the certificate of overassessment as constituting an account stated in his favor. In so doing he considers only that part of the account which gives him credit and ignores the part which makes a charge against him. That this cannot be done is well settled by the rules laid down in the Daube case, supra, and the Stearns Co. case, supra. In the latter case it is said that the essential of an account stated was long ago defined, and “ a balance must have been struck in such circumstances as to import a promise of payment on the one side and acceptance on the other.” It seems to us that no reasonable person would claim that the statement of the account between the parties contained in the certificate of overassessment, and which showed that nothing was due the plaintiff by reason of credits on other taxes, imported a claim to pay anything whatever. In view of the" }, { "docid": "19030190", "title": "", "text": "two years, and this leaves no foundation for plaintiff’s position. The 1928 act did not repeal section 3226, nor did it in any manner limit its provisions with reference to the time in which suit must be begun. Counsel for plaintiff also contend that the fact that the Commissioner found the overassessment constituted an allowance of the claim and a promise to pay the amount thereof and that the suit is based on the promise. This is merely a statement in another form that the determination of the overassessment constituted an account stated in favor of plaintiff to the amount of the overassessment. There is no basis for this contention. The action of the Commissioner in allowing the overassessment, crediting part of it on the taxes of other years and refunding the balance was all one-transaction and cannot be separated. The Commissioner did not merely allow the overassessment; he determined it and by the same determination announced that a part of it would not be refunded. Moreover, we have found as an ultimate fact that there is no evidence showing or tending to show any promise or agreement to pay the plaintiff any other sum than the amount which was refunded. For the reasons above set forth, we hold that the separate item of the overassessment contained in the certificate did not constitute an account stated upon which plaintiff could bring a suit within six years, and that plaintiff having failed to bring its suit within two years after the certificate or over-assessment and statement of account was issued, its action is barred under section 3226 of the Eevised Statutes. In support of the conclusions above stated with reference to an account stated, see R. H. Stearns Co. v. United States, supra; Leisenring v. United States, 78 C. Cls. 171 (certiorari denied); and Samuel Daube v. United States, 78 C. Cls. 754. It is clear that plaintiff’s petition should be dismissed and it is so ordered. Whaley, Judge; Williams, Judge; LittletoN, Judge; and Booth, Chief Justice, concur. SUPPLEMENTAL OPINION ON MOTION FOR NEW TRIAL Green, Judge, delivered the opinion of" }, { "docid": "7818843", "title": "", "text": "1, 1924; that since the actual application of the overassessment in favor of the partnership against the individual taxes of the partners was not accomplished until the Commissioner signed the schedules of refunds and credits on April 26, 1924, the collections were made out of time and the amounts thereof are refundable to plaintiff. This precise question has been considered by the court .in numerous cases and has been decided adversely to the plaintiff’s contention. Naumkeag Steam Cotton Co. v. United States, 76 C. Cls. 687, 2 Fed. Supp. 126 (certiorari denied); David Daube v. United States, 75 C. Cls. 633, 1 Fed. Supp. 771 (affirmed), 289 U. S. 367; R. H. Stearns Co. v. United States, 77 C. Cls. 264, 2 Fed. Supp. 773 (affirmed), 291 U. S. 54; Madeira Embroidery Co. v. United States, 78 C. Cls. 637, 5 Fed. Supp. 420. The deficiency assessments against the individual partners ■ were timely made. Within the period within which they were legally collectible the partnership, acting through the two surviving 23a]rt-ners and the executor of the deceased partner, filed with the Bureau formal written consent that the partnership’s scheduled overassessment be applied to the payment of the additional assessments against the individual partners. Except for this written consent, which amounted to a request, the Commissioner would no doubt have enforced collection within the period in which it could legally have been done. He acted, however, in strict accordance with the request and applied so much of plaintiff’s overpayment as was necessary to liquidate the taxes due from individual partners and refunded the balance to the plaintiff. In these circumstances it is entirely immaterial, so far as the plaintiff is concerned, whether the credits were made within the period in whch the additional taxes against the individual partners were legally collectible or whether they were made after the running of the statute. The plaintiff by its own action is equitably estopped from now asserting a claim for the amount of such credits. The petition, therefore, must be dismissed. It is so ordered. Whaley, Judge; LittletoN, Judge; GeeeN, Judge; and Booth," }, { "docid": "4736277", "title": "", "text": "heard to complain thereof. In view of the recent decisions of this court, it will not be necessary to state herein further reasons why the plaintiff cannot maintain its action. If any be sought, reference is made to the cases of Naumkeag Steam Cotton Co. v. United States, 2 F. Supp. 126, 76 Ct. Cl. 687, certiorari denied 289 U. S. 749, 53 S. Ct. 694, 77 L. Ed. 1495, R. H. Stearns Co. v. United States, 290 U. S. -, 54 S. Ct. 325, 78 L. Ed. -, decided Jan. 8, 1934, affirming the decision of this court, 2 F. Supp. 773, and the opinion in the case of Samuel Daube v. United States (Ct. Cl.) 5 F. Supp. 769, this day rendered, all of which show that the plaintiff is estopped under the circumstances from maintaining its action. We might also add that under the rale laid down in the last-named decision the plaintiff’s action is barred, no claim for refund having been filed in time in view of the fact that the evidence shows there was no account stated. Defendant also bases a defense on the fact that what is called “Form 368 — M” was attached to the schedule of overassessments, but we do not find it necessary to consider this matter. Plaintiff’s petition must be dismissed. It is so ordered. BOOTH, Chief Justice, and WHALEY and WILLIAMS, Judges, concur. LITTLETON, Judge, concurs in the result." }, { "docid": "15196402", "title": "", "text": "had been credited against unpaid taxes for other years, claimed by the taxpayer to have been barred from collection when the credit was made. In each of the cases relied upon recovery was sought of amounts thus credited. The essence of the decisions is that all the items appearing on a certificate of overassessment must be considered as making up the account and that a promise of the government to refund the overassessment shown in the certificate applies only to the balance remaining after the credits shown have been deducted. The rule is aptly stated in Holmes Manufacturing Co. v. United States, 6 F.Supp. 438, 439, 79 Ct.Cl. 263, where the court said: “It is quite obvious there was no account stated in favor of plaintiff except for the balance shown. The amount of this balance was paid leaving nothing due as the account was stated. Plaintiff seeks to take the one item of the account which showed the amount of the overassessment and ignore the credits and the refund made on the other side of the account. We have repeatedly held that this cannot be done, and, without citing all of the many cases that support our holding would call attention particularly to R. H. Stearns Co. v. United States, 291 U.S. 54, 54 S.Ct. 325, 78 L.Ed. 647; Leisenring v. United States, 3 F.Supp. 853 [4 F.Supp. 993] 78 Ct.Cl. 171, certiorari denied [291 U.S. 682] 54 S.Ct. 558, 78 L.Ed. 1069; and Samuel Daube v. United States, 5 F.Supp. 769 [78 Ct.Cl. 754].” The certificate of overassessment in the instant case sets forth (1) a total assessment for the year 1919 of $27,523.43, (2) a tax liability for the year of $2,943.77, and (3) an overassessment for the year of $24,579.66. It is then stated that $16,888.-99 of the overassessment is allowable and that $7,690.67 is barred by the statute of limitations. The latter amount, which was an overpayment, was the balance struck in the account as stated in the certificate, There was then, and is now, no controversy between the parties as to the correctness of" }, { "docid": "9434544", "title": "", "text": "that the Commissioner had mailed to plaintiff a full itemized statement of its liability for taxes for the years in controversy, as he determined it, in the form of a so-called “certificate of overassessment” which showed a credit upon the taxes of 1917 of the principal sum for which plaintiff now brings suit and also showed the balance due plaintiff which was refunded and accepted. Regardless of how we construe the statute of 1928 (section 609 [26 US CA § 2609]) which declares credits upon barred taxes to be “void,” the plaintiff must have understood from the statement of the account and the acts of the Commissioner in relation thereto that the Commissioner refused to pay anything more upon its claim for refund .than the amount specified as refundable in the statement of the account with interest thereon and that the remainder of plaintiff’s claim for refund was rejected. When the Commissioner informed plaintiff that the part of the overpayment for which suit is now being brought was credited upon taxes of another year, he could not have made any statement that would more definitely inform plaintiff that the claim for refund thereof had been rejected, and, when it was rejected, the statute of limitations began to run. That plaintiff instead of accepting the refund could have refused it and forthwith brought suit for the amount of the credit is so clear as to leave no room for argument or discussion. It is contended by plaintiff that section-609 (a) of the Act of 1928 (26 USCA § 2609 (a) created a new cause of action. This again is an error. This provision merely declared the status of an improper credit to be that of an overpayment, but it remained subject to all the statutory provisions with reference to the recovery of overpayments. This precise question was in effect determined in the case of R. H. Stearns Co. v. United States, 291 U. S. 54, 54 S. Ct. 325, 78 L. Ed. 647, a similar case to the one at bar, except that the payment in settlement of the account was" }, { "docid": "16418318", "title": "", "text": "the actual application of the overassessment in favor of the partnership against the individual taxes of the partners was not accomplished until the Commissioner signed the schedules of refunds and credits on April 26, 1924, the collections were made out of time and the amounts thereof are refundable to plaintiff. This precise question has been considered by the court in numerous cases and has been decided adversely to the plaintiff’s contention.' Naumkeag Steam Cotton Co. v. United States, 2 F. Supp. 126, 76 Ct. Cl. 687, certiorari denied 289 U. S. 749, 53 S. Ct. 694, 77 L. Ed. 1495; David Daube v. United States, 59 F.(2d) 842, 1 F. Supp. 771, 75 Ct. Cl. 633, affirmed 289 U. S. 367, 53 S. Ct. 597, 77 L. Ed. 1261; R. H. Stearns Co. v. United States, 2 F. Supp. 773, 77 Ct. Cl. 264, affirmed 291 U. S. 54, 54 S. Ct. 325, 78 L. Ed. 647; Madeira Embroidery Co. v. United States, 5 F. Supp. 420, 78 Ct. Cl. 637. The deficiency assessments against the individual partners were timely made. Within the period within which they were legally collectible the partnership, acting through the two surviving partners and the executor of the deceased partner, filed with the Bureau formal written consent that the partnership’s scheduled overassessment be applied to the payment of the additional assessments against the individual partners. Except for this written consent, which amounted to a request, the Commissioner would no doubt have enforced collection within the period in which it could legally have been done. He acted, however, in strict accordance with the request and applied so much of plaintiff’s overpayment as was necessary to liquidate the taxes due from individual partners and refunded the balance to the plaintiff. In these circumstances it is entirely immaterial, so far as the plaintiff is concerned, whether the credits were made within the period in which the additional taxes against the individual partners were legally collectible or whether they were made after the running of the statute. The plaintiff by its own action is equitably es-topped from now asserting" }, { "docid": "9435019", "title": "", "text": "where the plaintiff not only does not object to the tax account first presented to it by the Commissioner, but also when the Comptroller General makes an offset against the balance originally shown to be due plaintiff it appears that plaintiff requests that the offset be deducted from the amount originally shown to be due from the defendant and that the balance be remitted. Payment was accordingly made by defendant and plaintiff made no objection to the amount thereof until about three and a half years afterwards when on May 2, 1928, it filed a claim for refund of $5,-164.97 which was the amount of the additional tax for 1917 which had been deducted in fixing the balance due plaintiff. This court has in numerous cases laid down rules applicable to the circumstances of the instant case which would prevent any recovery therein. Counsel for plaintiff insists that this long line of decisions is erroneous but many of them have been considered and expressly affirmed by the Supreme Court and in all of the others certiorari has been denied. We think there is no necessity for reviewing by further discussion the principles laid down therein. Counsel for plaintiff evidently has a very different theory as to what constitutes an account stated and an account settled from that which is enunciated in the prior decisions of this court to which we have referred. Some misunderstanding has arisen with reference to the rules laid down in these cases because in most of them the question was not merely whether there was an account stated but whether there was an account stated in favor of plaintiff. The situation in the instant case was similar to that in the case of R. H. Stearns Co. v. United States, 291 U. S. 54, 54 S. Ct. 325, 329, 78 L. Ed. 647, in which the Supreme Court said: “In the absence of an account stated in its favor the petitioner must fail.” By the opinions of the Supreme Court in the case of Daube v. United States, 289 U. S. 367, 53 S. Ct. 597," }, { "docid": "4681253", "title": "", "text": "633, affirmed 289 U. S. 367, 53 S. Ct. 597, 77 L. Ed. 1261; and in the case of R. H. Stearns Co. v. United States, 2 F. Supp. 773, 77 Ct. Cl. -, affirmed 290 U. S. -, 54 S. Ct. 325, 329, 78 L. Ed. -; and also by the opinion of this court in the case of Naumkeag Steam Cotton Co. v. United States, 2 F. Supp. 126, 76 Ct. Cl. 687, certiorari denied 289 U. S. 749, 53 S. Ct. 694, 77 L. Ed. 1495, that it seems unnecessary to again repeat them. It may be noted, however, that the view which the writer took with reference to sections 607 and 609 of the Revenue Act of 1928 (26 USCA §§ 2607, 2609), in the concurring opinion in the Naumkeag Case, supra, namely, that these sections did not apply where the taxpayer of his own volition and at his own request seeks and consents to have certain credits made upon overassessments, was affirmed in the Steams Case, supra. Moreover, the effect of the estoppel was to prevent the plaintiff availing himself of the statute of limitations on the collection of the deficiencies. If there should be any doubt about the application of the doctrine of estoppel to the case at bar (and we do not think there is), it is clear that plaintiff’s cause of action is, under the rule laid down in the Stearns Case, barred by the statute of limitations. Plaintiff relies on the certificate of overassessment as constituting an account stated in his favor. In so doing he considers only that part of the account which gives him credit and ignores the part which malms a charge against him. That this cannot be done is well settled by the rules laid down in the Daube Case, supra, and the Stearns Co. Case, supra. In the latter case it is said that the essential of an account stated was long ago defined, and “a balance must have been struck in such circumstances as to import a promise of payment on the one side and" }, { "docid": "15196403", "title": "", "text": "of the account. We have repeatedly held that this cannot be done, and, without citing all of the many cases that support our holding would call attention particularly to R. H. Stearns Co. v. United States, 291 U.S. 54, 54 S.Ct. 325, 78 L.Ed. 647; Leisenring v. United States, 3 F.Supp. 853 [4 F.Supp. 993] 78 Ct.Cl. 171, certiorari denied [291 U.S. 682] 54 S.Ct. 558, 78 L.Ed. 1069; and Samuel Daube v. United States, 5 F.Supp. 769 [78 Ct.Cl. 754].” The certificate of overassessment in the instant case sets forth (1) a total assessment for the year 1919 of $27,523.43, (2) a tax liability for the year of $2,943.77, and (3) an overassessment for the year of $24,579.66. It is then stated that $16,888.-99 of the overassessment is allowable and that $7,690.67 is barred by the statute of limitations. The latter amount, which was an overpayment, was the balance struck in the account as stated in the certificate, There was then, and is now, no controversy between the parties as to the correctness of this balance. No credits are involved, and the only grounds on which the government seeks to retain the overpayment is that a refund thereof was barred by the statute of limitations when the certificate was issued, which is not the fact. In these circumstances the certificate of overassessment constituted an account stated of an overpayment of taxes by plaintiff in the sum of $7,690.67 for the year 1919, and an implied promise on the part of the government to refund it to plaintiff, notwithstanding the erroneous statement in the certificate that the refund was barred by the statute of limitations. Shipley Construction & Supply Co. v. United States, 7 F.Supp. 492, 79 Ct.Cl. 736; Frank H. Gage v. United States, 14 F.Supp. 500, 82 Ct.Cl.-, decided May 4, 1936. The plaintiff, having instituted this suit as upon an account stated within six years after the certificate of overassessment was delivered to him, is entitled to recover, and is hereby awarded judgment in the sum of $7,690.67, together with interest thereon as provided by law. The" }, { "docid": "4681254", "title": "", "text": "of the estoppel was to prevent the plaintiff availing himself of the statute of limitations on the collection of the deficiencies. If there should be any doubt about the application of the doctrine of estoppel to the case at bar (and we do not think there is), it is clear that plaintiff’s cause of action is, under the rule laid down in the Stearns Case, barred by the statute of limitations. Plaintiff relies on the certificate of overassessment as constituting an account stated in his favor. In so doing he considers only that part of the account which gives him credit and ignores the part which malms a charge against him. That this cannot be done is well settled by the rules laid down in the Daube Case, supra, and the Stearns Co. Case, supra. In the latter case it is said that the essential of an account stated was long ago defined, and “a balance must have been struck in such circumstances as to import a promise of payment on the one side and acceptance on the other.” It seems to us that no reasonable person would claim that the statement of the account between the parties contained in the certificate of overassessment, and which showed that nothing was due the plaintiff by reason of credits on other taxes, imported a claim to pay anything whatever. In view of the circumstances of the cáse from which it appears that plaintiff acquiesced in the action of the' Commissioner and did nothing to indicate any dissent therefrom until nearly six years there- ¡ after, we might well find that the statement constituted an account settled and that plain tiff was bound by the account as the Commissioner stated it. It is only necessary, however, that the finding with reference to this matter should show that there was no evidence whatever showing or tending to show any agreement or understanding that there was any sum due plaintiff whieh defendant would pay, and we have included this ultimate finding of fact in the findings whieh we are required by law to make. The" }, { "docid": "4736276", "title": "", "text": "1917 taxes. After having thus confirmed the transaction no further objections were made until more than five years afterwards when it filed the claim for refund of $43,927.65 for the year 1918 upon which the suit is now brought. It is urged on behalf of plaintiff that these communications and agreements were had and made with the collector and not with the Commissioner. It is not necessary to here lay down any general rule with reference to the effect of communications made to a United States collector of taxes or agreements made with him. It is sufficient to say that in this particular case we find that the collector had full charge of the matter of collecting these taxes subject to special directions from the Commissioner of Internal Revenue. By the negotiations and agreement entered into with the collector made at a time when the tax could be collected, the plaintiff succeeded in having the collection postponed, and, the arrangement which it had requested having been carried out by the defendant, it cannot now be heard to complain thereof. In view of the recent decisions of this court, it will not be necessary to state herein further reasons why the plaintiff cannot maintain its action. If any be sought, reference is made to the cases of Naumkeag Steam Cotton Co. v. United States, 2 F. Supp. 126, 76 Ct. Cl. 687, certiorari denied 289 U. S. 749, 53 S. Ct. 694, 77 L. Ed. 1495, R. H. Stearns Co. v. United States, 290 U. S. -, 54 S. Ct. 325, 78 L. Ed. -, decided Jan. 8, 1934, affirming the decision of this court, 2 F. Supp. 773, and the opinion in the case of Samuel Daube v. United States (Ct. Cl.) 5 F. Supp. 769, this day rendered, all of which show that the plaintiff is estopped under the circumstances from maintaining its action. We might also add that under the rale laid down in the last-named decision the plaintiff’s action is barred, no claim for refund having been filed in time in view of the fact that the" }, { "docid": "12522576", "title": "", "text": "apply it in partial payment of the claim.” Upon these facts the court said that “the action * * * is grounded upon the determination evidenced by the certificate issued by the Commissioner May 12, 1927. Upon delivery of the certificate to plaintiff, there arose the cause of action on which this suit was brought. United States v. Kaufman, 96 U. S. 567, 570, 24 L. Ed. 792; United States v. Savings Bank, 104 U. S. 728, 26 L. Ed. 908; Bank of Green castle’s, 15 Ct. Cl. 225. There is no merit in the contention that the suit is barred.” In Daube v. United States, 53 S. Ct. 597, 598, 77 L. Ed. -, decided May 8, 1933, the court, after referring to the Bonwit Teller & Co. Case and the fact that in it a certificate of overassessment had been issued and delivered, said “the statement of an account gives rise to a new cause of action with a new term of limitation.” The decision of this court dismissing the petition in the Daube Case was affirmed by the Supreme Court on the ground that no certificate of overassessment was delivered to the taxpayer. I do not think the decision of the Supreme Court in the Daube Case approves everything that was said by this court in that case. We have held that when the Commissioner signs a schedule of refunds and credits he allows an overpayment, and, when there is an entry thereon showing a tax due for another year, a credit is simultaneously made. Pottstown Iron Co. v. United States, 40 F.(2d) 142, 69 Ct. Cl. 427. But the allowance of the overpayment must occur before the credit can be effective. The certificate of overassessment, which follows the approval of the schedule allowing the overpayment, states the account for the particular taxable year by showing the total amount of the overpayment allowed and division thereof to the amount credited and the amount refunded; therefore, if the amount satisfied by an offset or credit of a portion of the overpayment is not legally due the government, or" }, { "docid": "10823694", "title": "", "text": "under section 3226 must be begun within two years, and this leaves no foundation for plaintiff’s position. The 1928 act did not repeal section 3226, nor did it in any manner limit its provisions with reference to the time in which suit must be begun.' Counsel for plaintiff also contend that the fact that the Commissioner found the over-assessment constituted an allowance of the claim and a promise to pay the amount thereof and that the suit is based on the promise. This is merely a statement in another form that the determination of the overassessment constituted an account stated in favor of plaintiff to the amount of the over-assessment. There is no basis for this contention. The action of the Commissioner in allowing the overassessment, crediting part of it on the taxes of other years and refunding the balance, was all one transaction and cannot be separated. The Commissioner did not merely allow the overassessment; he determined it, and by the same determination announced that a part of it would not be refunded. Moreover, we have found as an ultimate fact that there is no evidence showing or tending to show any promise or agreement to pay the plaintiff any other sum than the amount which was refunded. For the reasons above set forth, we hold that the separate item of the overassessment contained in the certificate did not constitute an account stated upon which plaintiff could bring a suit within six years, and that plaintiff having failed to bring its suit within two years after the certificate of overassessment and statement of account was issued, its action is barred under section 3226 of the Revised Statutes. In support of the conclusions above stated with reference to an account stated, see R. H. Stearns Co. v. United States, supra, Leisenring v. United States, 3 F. Supp. 853, 78 Ct. Cl. - (certiorari denied 54 S. Ct. 558, 78 L. Ed. -), and Samuel Daube v. United States (Ct. Cl.) 5 F. Supp. 769 (decided February 5, 1934). It is clear that plaintiff’s petition should be dismissed and it is" }, { "docid": "10823690", "title": "", "text": "account is presented, a party thereto cannot select one or more items stated in his favor therein and ignore charges made against him even though those charges be not well founded, and that an account stated must be taken as a whole or not at all. In this particular ease, the account showed a balance of a certain amount in favor of plaintiff for which it received a cheek issued in settlement. No complaint having been made with reference thereto for over five years, it must be considered an account settled. Cf. R. H. Stearns Co. v. United States, 291 U. S. 54, 54 S. Ct. 325, 78 L. Ed. -. The plaintiff, however, seeks to recover on another and novel ground which, in our opinion, is equally unfounded. It is insisted that, if it does not have the right to recover on an account stated the cause of action was still in time for the reason that plaintiff’s claim for refund filed June 24, 1921, was not rejected until the Commissioner of Internal Revenue declined to comply with the demand for the return of the amount credited on the 1917 taxes made by its attorneys through a letter dated August 23, 1928, and that the statute of limitations on claims for refund did not begin to run until that date. Nevertheless, it is said in argument that the claim for refund was at first allowed. It is thus conceded, as it must be, that action was taken upon the claim for refund. It is not necessary that any particular form should be used by the Commissioner in allowing or rejecting a claim for refund. In, the instant case, after the claim for refund had been filed, the Commissioner made an audit and review of plaintiff’s taxes in order to determine whether in fact they had been overpaid as was alleged in the claim for refund. He found and deter- . mined that the taxes for 1918 had been over- ' paid, or, as stated in the language of the Bureau, there had been an “overassessment” thereof. Having also determined" }, { "docid": "16418317", "title": "", "text": "I. Caesar, Charles Brodmerkel, Jr., in the amounts, respectively, of $26,474.54, $5,968.09, and $5,-969.59.” On April 26, 1924, the Commissioner of Internal Revenue signed a schedule of refunds and credits on which the overassessment of $72,857.23 was shown to have been .applied as follows: Credit to Henry A. Caesar in satisfaction of additional assessment for 1917, $26,474.54; credit to Harry I. Caesar in satisfaction of additional assessment for 1917, $5,968.09; and credit to Charles Brodmerkel, Jr., in satisfaction of additional assessment for 1917, $5,969.59. The balance of the assessment was shown on the schedule to be refundable, and the amount thereof was duly refunded to the partnership, with interest. The plaintiff contends that the written consent of the individual partners that the amount of the assessments against them as individuals should be satisfied out of the amount of the overassessment granted to the partnership did not operate to extend the statute of limitations for the collection of such taxes beyond the period in which they were legally collectible, to wit, April 1, 1924; that since the actual application of the overassessment in favor of the partnership against the individual taxes of the partners was not accomplished until the Commissioner signed the schedules of refunds and credits on April 26, 1924, the collections were made out of time and the amounts thereof are refundable to plaintiff. This precise question has been considered by the court in numerous cases and has been decided adversely to the plaintiff’s contention.' Naumkeag Steam Cotton Co. v. United States, 2 F. Supp. 126, 76 Ct. Cl. 687, certiorari denied 289 U. S. 749, 53 S. Ct. 694, 77 L. Ed. 1495; David Daube v. United States, 59 F.(2d) 842, 1 F. Supp. 771, 75 Ct. Cl. 633, affirmed 289 U. S. 367, 53 S. Ct. 597, 77 L. Ed. 1261; R. H. Stearns Co. v. United States, 2 F. Supp. 773, 77 Ct. Cl. 264, affirmed 291 U. S. 54, 54 S. Ct. 325, 78 L. Ed. 647; Madeira Embroidery Co. v. United States, 5 F. Supp. 420, 78 Ct. Cl. 637. The deficiency assessments against" }, { "docid": "9435020", "title": "", "text": "certiorari has been denied. We think there is no necessity for reviewing by further discussion the principles laid down therein. Counsel for plaintiff evidently has a very different theory as to what constitutes an account stated and an account settled from that which is enunciated in the prior decisions of this court to which we have referred. Some misunderstanding has arisen with reference to the rules laid down in these cases because in most of them the question was not merely whether there was an account stated but whether there was an account stated in favor of plaintiff. The situation in the instant case was similar to that in the case of R. H. Stearns Co. v. United States, 291 U. S. 54, 54 S. Ct. 325, 329, 78 L. Ed. 647, in which the Supreme Court said: “In the absence of an account stated in its favor the petitioner must fail.” By the opinions of the Supreme Court in the case of Daube v. United States, 289 U. S. 367, 53 S. Ct. 597, 77 L. Ed. 1261, and the Stearns Case, the rule has become settled that in cases where an account is presented showing a balance struck there must be an agreement either express or implied from the actions of the parties that the balance is correct, or no account has been stated; and where the party to whom the account is presented disputes the correctness of the balance he cannot select one item in his favor and, bringing suit upon that, claim the benefit of an account stated which is what plaintiff is trying to do in the case now before us. Moreover, there is still another reason why plaintiff cannot prevail. The rule stated above was amplified by the Supreme Court in the Stearns Co. Case, supra, in which facts similar ’to those appearing in the case at bar were held to establish an account settled. Counsel for plaintiff contends that the Stearns Co. Case is not applicable for the reason that the ac count submitted therein showed a balance due the Government which the" }, { "docid": "10823695", "title": "", "text": "we have found as an ultimate fact that there is no evidence showing or tending to show any promise or agreement to pay the plaintiff any other sum than the amount which was refunded. For the reasons above set forth, we hold that the separate item of the overassessment contained in the certificate did not constitute an account stated upon which plaintiff could bring a suit within six years, and that plaintiff having failed to bring its suit within two years after the certificate of overassessment and statement of account was issued, its action is barred under section 3226 of the Revised Statutes. In support of the conclusions above stated with reference to an account stated, see R. H. Stearns Co. v. United States, supra, Leisenring v. United States, 3 F. Supp. 853, 78 Ct. Cl. - (certiorari denied 54 S. Ct. 558, 78 L. Ed. -), and Samuel Daube v. United States (Ct. Cl.) 5 F. Supp. 769 (decided February 5, 1934). It is clear that plaintiff’s petition should be dismissed and it is so ordered. BOOTH, Chief Justice, and WHALEY, WILLIAMS, and LITTLETON, Judges, concur." } ]

[ { "docid": "22121510", "title": "", "text": "York Petition and never held a status conference to set a briefing schedule. They further note that Broker failed to comply with Local Rule 7.1 by not including a memorandum of law. We agree that the removed New York Petition should have been treated as a motion but disagree that the Investors had no obligation to respond. Rule 55(a) provides that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default.” Rule 55 “tracks the ancient common law axiom that a default is an admission of all well-pleaded allegations against the defaulting party.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir.2004). Like all general provisions of the Federal Rules, Rule 55 is meant to apply to “civil actions,” Fed.R.Civ.P. 2, where only the first step has been taken — ie., the filing of a complaint — and the court thus has only allegations and no evidence before it. We agree with the Investors that Rule 55 does not operate well in the context of a motion to confirm or vacate an arbitration award. See, e.g., N.Y. Typo graphical Union No. 6 v. AA Job Printing, 622 F.Supp. 566, 567 (S.D.N.Y.1985) (citing Traguth v. Zuck, 710 F.2d 90, 94 (2d Cir.1983)). As the very name implies, they are motions in an ongoing proceeding rather than a complaint initiating a plenary action. 9 U.S.C. § 6 (“Any application to the court hereunder shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise herein expressly provided.”); Productos Mercantiles E Industriales, S.A. v. Faberge USA, Inc., 23 F.3d 41, 46 (2d Cir.1994) (noting that a district court “properly treated [a petition to the court for modification of an arbitration award] as a motion in accordance with the express provisions of the FAA”). Rule 81(c) also appears to speak only to actions begun by service of" } ]

[ { "docid": "2268715", "title": "", "text": "this action. Docket # 1. On March 10, 2006, Plaintiffs filed a First Amended Complaint. Docket # 17. The First Amended Complaint contains 14 claims asserted against all Defendants, unless otherwise noted: violation of ERISA, 29 U.S.C. §§ 406 & 1132, resulting from Defendants’ breach of fiduciary duty in failing to pay Plaintiffs’ benefits claims (against all Defendants except TIG); conversion (of Plaintiffs’ premiums); negligence and negligent misrepresentation; quantum meruit; fraud and intentional misrepresentation; breach of contract; tortious interference with business relations of J. Seifts, J.C. Seifts and Co., and CAG (against all Defendants except TIG); unjust enrichment; breach of implied contract; breach of the covenant of good faith and fair dealing (against all Defendants except TIG); breach of common law fiduciary duty (against all Defendants except TIG); intentional infliction of emotional distress (against all Defendants except TIG); violation of New York Insurance Law § 3224-a, the “prompt pay” law; and violation of New York General Business Law § 349. As noted above, on May 6, 2011, a default judgment was entered in favor of the Individual Plaintiffs, Docket #80, and on March 15, 2012, a default judgment was entered in favor of the Seifts Plaintiffs. Docket # 102. DISCUSSION Upon the default of a party, a court must accept as true all factual allegations in the complaint, except those relating to damages, and a plaintiff is entitled to all reasonable inferences from the evidence offered, but the court nonetheless has discretion to decide whether the facts set forth in the complaint state a valid claim. See, e.g., Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981); see also, e.g., Gov’t Emps. Ins. Co. v. AMD Chiropractic, P.C., No. 12-cv-4295, 2013 WL 5131057, at *3 (E.D.N.Y. Sept. 12, 2013) (“The fact that a complaint stands unanswered does not, however, suffice to establish liability on its claims: a default does not establish conclusory allegations, nor does it excuse any defects in the plaintiffs pleading. With respect to liability, a defendant’s default does no more than concede the complaint’s factual allegations; it remains the plaintiffs burden to demonstrate" }, { "docid": "1723610", "title": "", "text": "in conformity with them; with denial of the petition it is unnecessary to consider further Steinberg’s motion to strike. As for his request for attorney’s fees, I believe that any question of sanctions against Interpol is more appropriately for the District Court as part of its determination of the current status of the action. That court is better able to grapple with the problems bred by the anomalous procedural route that Interpol has pursued, and it is not for us to predetermine the course of the case on remand. . See Fed.R.Civ.P. 12(b); 2A J. Moore & J. Lucas, Federal Practice ¶ 12.12 at 2324-2325 (2d ed. 1981). . Campbell v. Campbell, 83 U.S.App.D.C. 237, 170 F.2d 809 (1948); In re Uranium Antitrust Litigation, 473 F.Supp. 382, 391 (N.D.Ill.1979); 2A J. Moore & J. Lucas, supra note 1, ¶ 8.29 at 8-276; 5 C. Wright & A. Miller, Federal Practice § 1279 at 352-356 & n.59 (1969). Cf. Peters & Russell, Inc. v. Dorfman, 188 F.2d 711, 712-713 (7th Cir. 1951) (applying Rule 8(d) where plaintiff failed to reply to counterclaim denominated as such). See also the following cases, which cite Rule 8(d) as support for the principle that, on default for failure to answer or otherwise defend, well-pleaded factual allegations of the pleading that relate to liability, as opposed to damages, will be taken as true. Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974) (answer filed but subsequently stricken); Fehlhaber v. Indian Trails, Inc., 425 F.2d 715, 717 (3d Cir. 1970); Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977). . Petition for Rehearing and Suggestion for Rehearing En Banc at 2. . Steinberg v. International Criminal Police Org., 672 F.2d 927, at 932 and n.13. (D.C.Cir.1981). . Fed.R.Civ.P. 55. . See 5 C. Wright & A. Miller, supra note 2, § 1351 at 561." }, { "docid": "5716520", "title": "", "text": "577 (1973)). In conducting a damages inquest, the Court accepts as true all of the factual allegations of the Complaint, except those relating to damages. Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981). A plaintiff must therefore substantiate a claim with evidence to prove the extent of damages. See Trehan v. Von Tarkanyi 63 B.R. 1001, 1008 n. 12 (S.D.N.Y.1986) (plaintiff must introduce evidence to prove damages suffered and the court will then determine whether the relief flows from the facts) (citing Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir.1974)). Where a defaulting defendant has not made any submission on a damages inquest, the Court must assess whether the plaintiff has provided a sufficient basis for the Court to determine damages. See Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir.1997) (noting that the Court “should take the necessary steps to establish damages with reasonable certainty”). While the Court may hold a hearing to assess the amount of damages that should be awarded on a default, see Fed.R.Civ.P. 55(b)(2) (court may conduct hearings on damages as necessary), the Second Circuit has consistently held that “[b]y its terms, [Rule] 55(b)(2) leaves the decision of whether a hearing is necessary to the discretion of the district court,” Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir.1989); accord Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir.1993) (judges are given much discretion to determine whether an inquest need be held); Action S.A. v. Marc Rich & Co., 951 F.2d 504, 508 (2d Cir.1991) (Fed.R.Civ.P. 55(b)(2) “allows but does not require ... a hearing”). Where, on a damages inquest, the plaintiff makes a damages submission and the defaulting defendant makes no submission in opposition and does not request a hearing, the court may determine the adequacy of the plaintiffs damages claim based on its submitted proofs. See, e.g., Garden City Boxing Club, Inc. v. Hernandez, No. 04 Civ.2081(LAP)(DF), 2008 U.S. Dist. LEXIS 115454, at *5 (S.D.N.Y. Oct. 15, 2008) (determining the adequacy of the plaintiffs damages claim based" }, { "docid": "15674696", "title": "", "text": "on that date, plaintiffs had served defendants with copies of their motion papers by mail. Since this was more than three days in advance of the return date of March 4, 2009, included in the Notice of Motion, and more than three days before the hearing ultimately held by this Court on March 18, 2009, the notice requirement has been met. 4) Application of Default Standards Having reviewed the prior proceedings in this case, this Court respectfully recommends that default judgment be entered. When a default is entered, the defendant is deemed to have admitted all of the well-pleaded factual allegations in the complaint pertaining to liability, see Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.1992), cert. denied, 506 U.S. 1080, 113 S.Ct. 1049, 122 L.Ed.2d 357 (1993), and a party moving for default judgment is entitled to “all reasonable inferences in its favor.” Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir.2009) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d at 65). For the purposes of an inquest, a court accepts as true all factual allegations in the complaint, except those claims relating to damages. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d at 65; see also Finkel v. Romanowicz, 577 F.3d at 83 n. 6. A review of plaintiffs’ Complaint demonstrates that plaintiffs have alleged, inter alia, that the defendants violated Sections 32(1) and 43(a) of the Lanham Act, 15 U.S.C. §§ 1114(1), as amended, and 15 U.S.C. § 1125(a), through the unauthorized manufacture, distribution and sale of shirts and other items bearing the likenesses, logo, and trademarks of various musical performers. Based on a review of the allegations set forth in the Complaint, it appears that plaintiffs have established the elements of liability necessary to state a claim under either of these statutes. It further appears that the Court has subject matter jurisdiction over plaintiffs’ trademark claims under 28 U.S.C. §§ 1331 and supplemental jurisdiction over plaintiffs’ related state law claims under 28 U.S.C. § 1367. Section 1114(1) (a) provides: “Any person who shall, without the consent of" }, { "docid": "11474268", "title": "", "text": "seq., was referred to me for a determination of damages, interest, attorney’s fees and costs after entry of a default judgment against R Bar of Manhattan, Inc. and Joseph Ruggiero, upon their failure to appear herein. Plaintiffs have submitted affidavits and documentary evidence on damages. The defendants did not make any submissions or contact the court at any time, despite notice and opportunity to do so. For the reasons in my proposed findings of fact and conclusions of law set forth below, I recommend entry of awards of $12,000 in statutory damages, $1,426.52 in prejudgment interest and $865 in attorney’s fees and costs, as well as a permanent injunction prohibiting defendants from unauthorized public performances of any copyrighted compositions licensed through plaintiff Broadcast Music, Inc. (“BMI”). A default judgment entered on well-pleaded allegations of a complaint establishes a defendant’s liability. The allegations are to be accepted as true, except those relating to the amount of damages. Bambú Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 853 (2d Cir.1995); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981); Flaks v. Koe-gel, 504 F.2d 702, 707 (2d Cir.1974); Trans World Airlines, Inc. v. Hughes, 449 F.2d 51, 69-70 (2d Cir.1971), rev’d on other grounds, 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973). The five plaintiffs are four music publishing companies, who are the copyright owners in eight musical compositions involved herein, and BMI, who has been granted the right to license the public performance rights in those compositions. (Complaint, ¶¶ 3, 4, 11.) Each of the eight compositions was publicly performed without permission from plaintiffs at R Bar, an establishment located at 273 Church Street that is owned and operated by defendants. (Id. ¶¶5, 13; Declaration of Ross Schneider, June 26,1995, at 1-2.) Upon learning that musical works licensed by BMI were being performed at R Bar, BMI wrote the defendants on November 25, 1992 of the need to obtain permission for performances of copyrighted music and sent them a license agreement to enter into. Having received no response, BMI sent another letter to defendants" }, { "docid": "10942099", "title": "", "text": "defrauding creditors and investors. See Meyerson v. Werner, 683 F.2d 723, 728 (2d Cir.1982); In re Ellison Assocs., No. 81 Civ. 5841 (CSH), slip op. (S.D.N.Y. Sept. 28, 1983); In re Chanticleer Assocs., Ltd., No. 77 B 1463, slip op. (S.D.N.Y. July 28, 1978); Eastern Dev. & Inv. Corp. v. City of San Antonio, 557 S.W.2d 823 (Tex.Civ.App.1977). On reconsideration, I reaffirm my previous decision not to impose punitive damages. First, I reject plaintiffs’ argument that I should have taken the allegations of the complaint as true in deciding whether to impose punitive damages. Plaintiffs are correct that our court of appeals has held that when a defendant defaults, it admits “every ‘well-pleaded allegation’ of the complaint.” Trans World Airlines, Inc. v. Hughes, 449 F.2d at 63. However, that rule is limited in its reach — the factual allegations of the complaint relating to liability are taken as true, but the allegations relating to the amount of damages are not. See Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir.1983); Au Bon Pain Corp. v. Ar tect, Inc., 653 F.2d 61, 65 (2d Cir.1981); Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir.1977); 10 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil § 2688, at 444 (2d ed. 1983). Thus, our court of appeals has stated that “a default judgment entered on well-pleaded allegations in a complaint establishes a defendant’s liability” ..., [b]ut it is clear that the fact of liability alone does not establish a right to a specific form of relief. Accordingly, unless the amount of damages are absolutely certain, the court is required to make an independent determination of the sum to be awarded. SEC v. Management Dynamics, Inc., 515 F.2d 801, 814 (2d Cir.1975) (quoting Trans World Airlines, Inc. v. Hughes, 449 F.2d at 69). In order to make an independent determination of damages, a court must of course hold an evidentiary hearing. Our court of appeals has stated a hearing is especially called for where a plaintiff seeks punitive damages, since they" }, { "docid": "23024165", "title": "", "text": "same extent as, said corporate defendants.” Appellant also draws our attention to the allegation in the complaint that appellees used the corporate defendants as a scheme and device to avoid individual liability, and that each of the corporate defendants “was and now is the alter ego of each of said individual defendants.” Appellant argues that upon appellees’ defaults in this suit, appellees admitted this joint liability for the full amount of $66,900,000. The general rule of law is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true. Pope v. United States, 323 U.S. 1, 12, 65 S.Ct. 16, 89 L.Ed. 3 (1944); Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974). See also 10 Wright & Miller, Federal Practice and Procedure § 2688, at 280, 284 (1973). Support for this general rule is found in Rule 8(d) of the Federal Rules of Civil Procedure which reads: “Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading.” Further support for the rule can be found in Federal Rule of Civil Procedure 55(b) which expressly authorizes the court to conduct a hearing on the issue of damages before entering a judgment by default. Accordingly, we reject appellant’s assertion that appellees’ defaults admitted the full $66,900,000 damages claimed. Appellees’ defaults established their respective liabilities, but not the extent of the damages to the plaintiff class. Appellant also contends that the trial court erred in entering judgments that were based in part on appellees’ abilities to pay. It is undisputed that the trial court reduced the money judgments against appellees after taking into account their financial conditions. It has been widely held by the courts that have considered the problem that the financial standing of the defendant is inadmissible as evidence in determining the amount of compensatory damages to be awarded. See, e. g., Eisenhauer v. Burger, 431 F.2d 833, 837 (6th Cir. 1970); Parkins v. Brown, 241 F.2d 367, 368" }, { "docid": "12046", "title": "", "text": "damages under both the NYSLL and the FLSA. A default judgment entered on the well-pleaded allegations in the complaint establishes a defendant’s liability. See Garden City Boxing Club, Inc. v. Morales, No. 05-CV-0064, 2005 WL 2476264, at *3 (E.D.N.Y. Oct. 7, 2005) (citing Bambu Sales, Inc. v. Ozak Trading, Inc., 58 F.3d 849, 854 (2d Cir.1995)). The only question remaining, then, is whether Plaintiffs have provided adequate support for the relief they seek. Greyhound Exhibitgroup, Inc. v. E.L. U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.1992). The moving party need only prove “that the compensation sought relate to the damages that naturally flow from the injuries pleaded.” Id. at 159. In determining damages not susceptible to simple mathematical calculations, Federal Rule 55(b)(2) gives courts discretion to determine whether an evidentiary hearing is necessary or whether to rely on detailed affidavits or documentary evidence. Action S.A. v. Marc Rich and Co., Inc., 951 F.2d 504, 508 (2d Cir.1991). The moving party is entitled to all reasonable inferences from the evidence it offers. Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981). Under the FLSA, an employee is entitled to recover “the amount of their unpaid minimum wages, [and/] or their unpaid overtime compensation” and “an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b) (2008). The employer bears the burden of establishing that liquidated damages should not be awarded. Reich v. S. New England Telecomm. Corp., 121 F.3d 58, 71 (2d Cir.1997). However, because Defendants have not responded to the motion for default and have not carried their burden, liquidated damages are appropriate. Under New York Labor Law, an employee is entitled to recover unpaid minimum wages and overtime, in addition to unpaid spread of hours pay. 12 N.Y.C.R.R. §§ 142-2.2, -2.4 (2010). New York law also provides for liquidated damages equivalent to 25% of the total amount of the wages found to be due, if the employer’s underpayments were willful. N.Y. Lab. Law §§ 198(1-a), 663(1) (McKinney 2009). Under New York Labor Law, willfulness is established where employers voluntarily underpay employees. Moon v. Kwon," }, { "docid": "5716519", "title": "", "text": "June 21, 2010, Plaintiff delivered her Proposed Findings to my chambers, although she apparently did not file them. The Proposed Findings are in the form of an attorney declaration, with attached exhibits. (See id.) The submission, titled only “Proposed Findings of Fact,” does not contain a single legal citation. Moreover, Plaintiffs submission does not include any affidavit or declaration by any person with knowledge of the underlying facts. In addition, the submitted attorney declaration contains minimal, if any, explanation for the documentary evidence attached as exhibits, and, as discussed below, much of that evidence is sparse, is not self-explanatory, and does not appear to support the claimed damages figures. DISCUSSION I. APPLICABLE LEGAL STANDARDS Although “a default judgment entered on well-pleaded allegations in a complaint establishes a defendant’s liability,” it does not reach the issue of damages. Bambu Sales, Inc. v. Ozak Trading, Inc., 58 F.3d 849, 854 (2d Cir.1995) (quoting Trans World Airlines, Inc. v. Hughes, 449 F.2d 51, 69 (2d Cir.1971), rev’d on other grounds, 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973)). In conducting a damages inquest, the Court accepts as true all of the factual allegations of the Complaint, except those relating to damages. Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981). A plaintiff must therefore substantiate a claim with evidence to prove the extent of damages. See Trehan v. Von Tarkanyi 63 B.R. 1001, 1008 n. 12 (S.D.N.Y.1986) (plaintiff must introduce evidence to prove damages suffered and the court will then determine whether the relief flows from the facts) (citing Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir.1974)). Where a defaulting defendant has not made any submission on a damages inquest, the Court must assess whether the plaintiff has provided a sufficient basis for the Court to determine damages. See Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir.1997) (noting that the Court “should take the necessary steps to establish damages with reasonable certainty”). While the Court may hold a hearing to assess the amount of damages that should be awarded" }, { "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": "4270362", "title": "", "text": "1, 2008. (Doc. Entry No. 3.) Default was entered against defendant on October 30, 2008, pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. Plaintiff does not allege any actual loss; rather, plaintiff seeks statutory damages, attorneys’ fees and costs. (See Compl.; Compl. Ex. 1; Doc. Entry No. 6, Kidd Nov. 7, 2008 Letter.) For the reasons set forth below, this court enters judgment in favor of plaintiff and against defendant in the amount of $2,755.00, reflecting $500.00 in statutory damages, $415.00 in costs, and $1,840.00 in reasonable attorneys’ fees. DISCUSSION A. Determination of Damages on a Motion for Default The Second Circuit has approved the holding of a damages inquest by affidavit without an in-person court hearing following a default, “as long as [the court has] ensured that there was a basis for the damages specified in the default judgment.” Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir.1997) (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir.1989)). Moreover, when “the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.” Chen v. Jenna Lane, Inc., 30 F.Supp.2d 622, 623 (S.D.N.Y.1998); see also Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981). A default judgment that is entered on the well-pleaded allegations in a complaint establishes a defendant’s liability, see Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 854 (2d Cir.1995), and the sole remaining issue before the court is whether the plaintiff has provided adequate support for the relief sought. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.1992). When, as here, default has been noted, a party’s recovery is limited to the amount prayed for in its demand for judgment. Fed.R.Civ.P. 54(c); Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 683 (2d Cir.1993). In the instant action, defendant conceded the following facts due to its default: (1) defendant is a “debt collector” as that term is used in" }, { "docid": "638576", "title": "", "text": "of Jennifer Smith dated October 14, 2010 (“10/14/10 Smith Deck”) (ct. doc. 54) ¶ 5. After entry of default, defendants appeared through counsel to contest plaintiffs’ allegations, making legal arguments through counsel’s affidavit but not submitting any documentary evidence. I respectfully recommend that judgment be entered against defendants in the amounts described in detail below. DISCUSSION I. Governing Legal Standards In deciding whether a default judgment should be entered following entry of default, a court may accept all well-pleaded allegations in the unanswered complaint as true but must still satisfy itself that the plaintiff has established a sound legal basis upon which liability may be imposed. Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981) (“[A] district court has discretion under Rule 55(b)(2) once a default is determined to require proof of necessary facts and need not agree that the alleged facts constitute a valid cause of action.”) It is for the court to “consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit conclusions of law.” Leider v. Ralfe, 2004 WL 1773330, at *7 (S.D.N.Y.2004) (quoting In re Indus. Diamonds Antitrust Litig., 119 F.Supp.2d 418, 420 (S.D.N.Y. 2000)). A defendant’s default also does not constitute an admission of allegations pertaining to the amount of damages. See Finkel v. Romanowicz, 577 F.3d 79, 83 n. 6 (2d Cir.2009) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.1992)). A default merely establishes that damages were proximately caused by the defaulting party’s conduct; that is, the acts pleaded in a complaint violated the laws upon which a claim is based and caused injuries as alleged. See Greyhound, 973 F.2d at 159. The movant need prove “only that the compensation sought relate[s] to the damages that naturally flow from the injuries pleaded.” Id. If the facts are sufficient to establish liability as to the asserted claims, the court must then conduct an inquiry to determine the amount of damages to a “reasonable certainty.” Credit Lyonnais Secs. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d" }, { "docid": "20036550", "title": "", "text": "judgment against a party that has failed to plead or otherwise defend an action brought against it. See Fed.R.Civ.P. 55(b)(2). It is well-settled that a corporation cannot appear in federal court without legal representation. See Rowland v. California Men’s Colony, 506 U.S. 194, 201-02, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993); Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir.1983). A corporation’s failure to retain counsel within a specified period may result in a default judgment against the corporation. See Eagle Assoc. v. Bank of Montreal, 926 F.2d 1305, 1310 (2d Cir.1991); Dow Chemical Pacific Ltd. v. Rascator Maritime S.A., 782 F.2d 329, 336 (2d Cir.1986) (affirming district court’s entry of default where the corporation failed to secure counsel); Babaev v. Grossman, No. 03-CV-5076, 2009 WL 81354 (E.D.N.Y. Jan. 9, 2009). While the defaulting party has essentially admitted to all the allegations found in the complaint, the Court has the “responsibility to ensure that the factual allegations, accepted as true, provide a proper basis for liability and relief.” Rolls—Royce plc v. Rolls—Royce USA, Inc., 688 F.Supp.2d 150, 153 (E.D.N.Y.2010) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981)). A plaintiff is entitled to all reasonable inferences of the evidence offered to the Court. See Au Bon Pain Corp., 653 F.2d at 65. C.Liability 1. Unfair Competition Section 43(a) of the Lanham Act prohibits “[a]ny person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which.... is likely to cause confusion ...” 15 U.S.C. § 1125(a)(1)(A). A party establishes liability under Section 43(a) of the Lanham Act if it can demonstrate “(1) that it has a valid trademark entitled to protection under the Act, and (2) defendant’s actions are ‘likely to cause confusion.’ ” Phillip Morris, 2005 WL 2076921, at *4 (quoting Arrow Fastener v. Stanley Works, 59 F.3d 384, 390 (2d Cir.1995)). Unfair" }, { "docid": "2268716", "title": "", "text": "the Individual Plaintiffs, Docket #80, and on March 15, 2012, a default judgment was entered in favor of the Seifts Plaintiffs. Docket # 102. DISCUSSION Upon the default of a party, a court must accept as true all factual allegations in the complaint, except those relating to damages, and a plaintiff is entitled to all reasonable inferences from the evidence offered, but the court nonetheless has discretion to decide whether the facts set forth in the complaint state a valid claim. See, e.g., Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981); see also, e.g., Gov’t Emps. Ins. Co. v. AMD Chiropractic, P.C., No. 12-cv-4295, 2013 WL 5131057, at *3 (E.D.N.Y. Sept. 12, 2013) (“The fact that a complaint stands unanswered does not, however, suffice to establish liability on its claims: a default does not establish conclusory allegations, nor does it excuse any defects in the plaintiffs pleading. With respect to liability, a defendant’s default does no more than concede the complaint’s factual allegations; it remains the plaintiffs burden to demonstrate that those uncontroverted allegations, without more, establish the defendant’s liability on each asserted cause of action.”) (citation omitted); Nwagboli v. Teamwork Transp. Corp., No. 08 Civ. 4562, 2009 WL 4797777, at *2 (S.D.N.Y. Dec. 7, 2009) (‘When assessing the propriety of a damages award after a judgment by default is entered, a court must be satisfied initially that the allegations of the complaint are well-pleaded.”) (internal quotation marks and citation omitted). “If the allegations are well-pleaded, or, in other words, establish liability for a claim, the quantum of damages remains to be established by proof unless the amount is liquidated or susceptible to mathematical computation.” Nwagboli, 2009 WL 4797777, at *2 (internal quotation marks, alteration, and citation omitted). In determining the amount of damages to be awarded, “under FRCP 55(b)(2), ‘it [is] not necessary for the District Court to hold a hearing, as long as it [has] ensured that there [is] a basis for the damages specified in the default judgment.’ ” Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111" }, { "docid": "23185330", "title": "", "text": "bolster their argument by misquoting Rule 55(b)(2) of the Federal Rules of Civil Procedure. The rule provides in pertinent part that “[i]f, in order to enable the court to enter judgment or to carry it into effect, it is necessary to establish the truth of any averment by evidence ... the court may conduct” a hearing. The district court did not abuse its discretion in determining that a hearing on the truth of any allegation relating to liability was unnecessary. Defendants further argue that the district court erred in awarding “punitive damages” “without proof of harm” to Dundee. The award of $250,000 did not constitute punitive damages; the award was for damages suffered as a result of defendants’ fraudulent acts. See Count III of the complaint. The argument defendants are attempting to articulate is that the district court abused its discretion in failing to hold a hearing on the amount of damages suffered as a result of the fraud alleged in Count III. Although upon default the factual allegations of a complaint relating to liability are taken as true, those allegations relating to the amount of damages suffered are ordinarily not. See Pope v. United States, 323 U.S. 1, 65 S.Ct. 16, 89 L.Ed. 3 (1944); Geddes v. United Financial Group, 559 F.2d 557 (9th Cir.1977). A judgment by default may not be entered without a hearing on damages unless, as in Counts I, II and IV of this complaint, the amount claimed is liquidated or capable of ascertainment from definite figures contained in the documentary evidence or in detailed affidavits. United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir.1979); see also Geddes v. United Financial Group, supra, 559 F.2d 557; Eisler v. Stritzler, 535 F.2d 148 (1st Cir.1976); Magette v. The Daily Post, 535 F.2d 856 (3d Cir.1976); Flaks v. Koegel, 504 F.2d 702 (2d Cir.1974); 6 Moore’s Federal Practice ¶ 55.07 (2d ed. 1983). Apart from the damages sought for fraud in Count III, the district court did not abuse its discretion in determining that a hearing to determine the amount of damages was unnecessary, for" }, { "docid": "23185331", "title": "", "text": "are taken as true, those allegations relating to the amount of damages suffered are ordinarily not. See Pope v. United States, 323 U.S. 1, 65 S.Ct. 16, 89 L.Ed. 3 (1944); Geddes v. United Financial Group, 559 F.2d 557 (9th Cir.1977). A judgment by default may not be entered without a hearing on damages unless, as in Counts I, II and IV of this complaint, the amount claimed is liquidated or capable of ascertainment from definite figures contained in the documentary evidence or in detailed affidavits. United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir.1979); see also Geddes v. United Financial Group, supra, 559 F.2d 557; Eisler v. Stritzler, 535 F.2d 148 (1st Cir.1976); Magette v. The Daily Post, 535 F.2d 856 (3d Cir.1976); Flaks v. Koegel, 504 F.2d 702 (2d Cir.1974); 6 Moore’s Federal Practice ¶ 55.07 (2d ed. 1983). Apart from the damages sought for fraud in Count III, the district court did not abuse its discretion in determining that a hearing to determine the amount of damages was unnecessary, for the amounts claimed were liquidated. The damages portion of this judgment under Count III must be remanded for further consideration. First, although additional proof of damages was unnecessary with respect to the liquidated damages sought in Counts I, II, and IY, Dundee has not adequately supported its claim for $250,000 damages suffered as a result of defendants’ fraud that prevented plaintiff “from seeking its appropriate and rightful remedies against” the defendants (App. 000009). A hearing must be held at which Dundee must provide evidence in support of the component damages comprising the total damages of $250,000 alleged in Count III. Geddes v. United Financial Group, supra, 559 F.2d at 560. Second, defendants were alleged to be jointly and severally liable for the damages claimed in Counts II, III, and IV. Although this Court’s decision in In re Uranium Antitrust Litigation, 617 F.2d 1248 (7th Cir.1980), made clear that where liability is joint and several, the entry of default judgment against fewer than all defendants in an action is proper, we further held that a damages" }, { "docid": "10942100", "title": "", "text": "(7th Cir.1983); Au Bon Pain Corp. v. Ar tect, Inc., 653 F.2d 61, 65 (2d Cir.1981); Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir.1977); 10 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil § 2688, at 444 (2d ed. 1983). Thus, our court of appeals has stated that “a default judgment entered on well-pleaded allegations in a complaint establishes a defendant’s liability” ..., [b]ut it is clear that the fact of liability alone does not establish a right to a specific form of relief. Accordingly, unless the amount of damages are absolutely certain, the court is required to make an independent determination of the sum to be awarded. SEC v. Management Dynamics, Inc., 515 F.2d 801, 814 (2d Cir.1975) (quoting Trans World Airlines, Inc. v. Hughes, 449 F.2d at 69). In order to make an independent determination of damages, a court must of course hold an evidentiary hearing. Our court of appeals has stated a hearing is especially called for where a plaintiff seeks punitive damages, since they lie with the discretion of the court and depend upon the degree of wanton and willful conduct of the defendant. Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir.1974). In directing that district courts hold hearings before imposing punitive damages, the court of appeals evidently contemplated that a plaintiff would be required to come forward with actual proof of wanton and willful conduct on the part of the defendant. If the court of appeals were content to permit a plaintiff to rely on the “well-pleaded allegations” of its complaint to support a prayer for punitive damages, it obviously would have seen no need for a hearing at all. Thus, I conclude that the court of appeals’ decision in Flaks required plaintiffs here to produce actual proof of wanton and willful conduct by defendants at the evidentiary hearing scheduled for that purpose. Plaintiffs could not merely rely on the allegations in their complaint that Walter G. Cook entered into the transactions at issue with an intent to deceive them and with no intent of ever repaying" }, { "docid": "4270363", "title": "", "text": "that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.” Chen v. Jenna Lane, Inc., 30 F.Supp.2d 622, 623 (S.D.N.Y.1998); see also Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981). A default judgment that is entered on the well-pleaded allegations in a complaint establishes a defendant’s liability, see Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 854 (2d Cir.1995), and the sole remaining issue before the court is whether the plaintiff has provided adequate support for the relief sought. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.1992). When, as here, default has been noted, a party’s recovery is limited to the amount prayed for in its demand for judgment. Fed.R.Civ.P. 54(c); Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 683 (2d Cir.1993). In the instant action, defendant conceded the following facts due to its default: (1) defendant is a “debt collector” as that term is used in the FDCPA (Compl. ¶ 3); (2) the Letter failed to specifically inform plaintiff that she was required to notify defendant in writing of any dispute regarding the validity of the debt to obtain verification of the debt (Compl. ¶ 7); (3) defendant attempted to collect a debt in New York City without the requisite debt collection license (Compl. ¶ 11). In light of these uncontested facts, the court must now determine whether Streeter Law violated the aforementioned sections of the FDCPA so as to merit granting the relief sought — statutory damages, attorneys’ fees, and costs. B. FDCPA Claims 1. Validation Notice Claim The FDCPA was enacted to “protect consumers from unscrupulous debt collection practices ... without imposing unnecessary restrictions on ethical debt collectors.” Tromba v. M.R.S. Assocs., Inc., 323 F.Supp.2d 424, 426 (E.D.N.Y.2004) (citing S.Rep. No. 382, 95th Cong., 1st Sess. 1-2 reprinted, in 1997 U.S.Code Cong. & Admin. News 1695, 1696). The FDCPA “establishes certain rights for consumers whose debts are placed in the hands of professional debt collectors for collection, and requires" }, { "docid": "23024164", "title": "", "text": "The judgments, which are identical, provide that as to each defendant-appellee: a. plaintiffs have judgment in the amount of $2500; execution to be stayed for one year; b. his claim for wages and expense reimbursement and his claim as an investor in United Financial Group, Inc. and its subsidiaries filed with the receiver appointed in SEC v. United Financial Group, Inc., supra, are denied; and c. any assets owned by defendant-appellee, not heretofore disclosed, or which have been substantially undervalued in said disclosures, are adjudged assets of the receivership estate established in the SEC action. On December 31, 1974, a member of the plaintiff class, Enrico Chesi, filed notice of appeal from each of the three judgments. Appellant’s initial contention here is that the trial court erred in entering judgments against appellees in amounts less than the $66,900,000 award entered against the corporate defendants in this action. In support of his contention appellant points out that the complaint in this case explicitly alleges that each appellee is “jointly and separately liable with, and to the same extent as, said corporate defendants.” Appellant also draws our attention to the allegation in the complaint that appellees used the corporate defendants as a scheme and device to avoid individual liability, and that each of the corporate defendants “was and now is the alter ego of each of said individual defendants.” Appellant argues that upon appellees’ defaults in this suit, appellees admitted this joint liability for the full amount of $66,900,000. The general rule of law is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true. Pope v. United States, 323 U.S. 1, 12, 65 S.Ct. 16, 89 L.Ed. 3 (1944); Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974). See also 10 Wright & Miller, Federal Practice and Procedure § 2688, at 280, 284 (1973). Support for this general rule is found in Rule 8(d) of the Federal Rules of Civil Procedure which reads: “Averments in a pleading to which a responsive pleading is required, other than those as" }, { "docid": "22562746", "title": "", "text": "where, as here, a defendant opposes a plaintiffs motion for a default judgment (or moves to set aside a default judgment under Fed.R.Civ.P. 55(c)), the district court should consider three factors: 1) whether, and to what extent, the default was willful; 2) whether defendants have a meritorious defense; and 3) whether vacating the judgment would cause prejudice to the plaintiff. See SEC v. McNulty, 137 F.3d 732, 738 (2d Cir.1998); Commercial Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 243 (2d Cir.1994). Finally, defendants claim the district court erred in awarding damages in the amount demanded by plaintiff without conducting an inquest into the proper measure of damages. We agree that the court did not have sufficient evidence to make a damages award. Rule 55(b)(2) provides that when granting a default judgment, if “it is necessary to take account or to determine the amount of damages or to establish the truth of any averment by evidence ... the court may conduct such hearings or order such references as it deems necessary and proper.” At the time judgment was entered, the court had before it only the allegations in the complaint and the affidavit of plaintiffs counsel, who did not purport to have personal knowledge of the facts, asserting an amount of damages sustained by plaintiff as a result of defen dant’s failure to deliver the securities. This was insufficient evidence upon which to enter the amount of the judgment. Even when a default judgment is warranted based on a party’s failure to defend, the allegations in the complaint with respect to the amount of the damages are not deemed true. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981); Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir.1977). The district court must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty. See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir.1997). If the district court finds on remand both that it has jurisdiction over the defendants and that judgement should" } ]

[ { "docid": "21507737", "title": "", "text": "favor of the debtor.”); In re Payne, 27 B.R. 809, 817 (Bankr.D.Kan. 1983) (“Moreover, ambiguities in the Code must be resolved in favor of the debtor, not the creditor.”). C. The Farmers’ Issues On Appeal 1. The statute at issue The Knudsens’ appeal involves the appropriate interpretation of 11 U.S.C. § 1222(a)(2), as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). Prior to April 20, 2005, § 1222(a)(2) provided as follows: (a) The plan shall- — • (2) provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507 of this title, unless the holder of a particular claim agrees to a different treatment of such claim. 11 U.S.C. § 1222(a)(2) (2004). Thus, former § 1222(a)(2) required full payment, in deferred cash payments, of all priority claims as defined by 11 U.S.C. § 507, unless the claimant agreed to different treatment. In the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Congress amended § 1222(a)(2), effective April 20, 2005, in pertinent part, as follows: (a) The plan shall— (2) provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507, unless— (A) the claim is a claim owed to a governmental unit that arises as a result of the sale, transfer, exchange, or other disposition of any farm asset used in the debtor’s farming operation, in which case the claim shall be treated as an unsecured claim that is not entitled to priority under section 507, but the debt shall be treated in such manner only if the debtor receives a discharge; or (B) the holder of a particular claim agrees to a different treatment of that claim.... 11 U.S.C. § 1222(a)(2)(A). Thus, as amended, § 1222(a)(2) plainly creates a new exception to priority status by stripping priority from claims of “a governmental unit” that “arise” from a transaction involving “any farm asset used in the debt- or’s farming operation,” but “only if the debtor receives a discharge.” See, e.g., B & D Land & Livestock Co., 332 F.Supp.2d" } ]

[ { "docid": "21775269", "title": "", "text": "debtors similarly file a plan of reorganization. § 1221. To be confirmed, the plan must provide for the full payment of priority claims. § 1222(a)(2). In the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPÁ), § 1003, 119 Stat. 186, Congress created an exception to that requirement: “Contents of plan “(a) The plan shall— “(2) provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507, unless— “(A) the claim is a claim owed to a governmental unit that arises as a result of the sale, transfer, exchange, or other disposition of any farm asset used in the debtor’s farming operation, in which case the claim shall be treated as an unsecured claim that is not entitled to priority under section 507, but the debt shall be treated in such manner only if the debtor receives a discharge.” 11 U.S. c: §1222. Under § 1222(a)(2)(A), certain governmental claims resulting from the disposition of farm assets are downgraded to general, unsecured claims that are dischargeable after less than full payment. See § 1228(a). The claims are stripped of their priority status. That exception, however, applies only to claims in the plan that are “entitled to priority under section 507” in the first place. Section 507 lists 10 categories of such claims. Two pertain to taxes: One category, § 507(a)(8), covers prepetition taxes, and is inapplicable in this case. The other, § 507(a)(2), covers “administrative expenses allowed under section 503(b),” which in turn includes “any tax . . . incurred by the estate.” §503(b)(l)(B)(i). Thus, for postpetition taxes to be entitled to priority under §507 and eligible for the § 1222(a)(2)(A) exception, the taxes must be “incurred by the estate.” B Petitioners Lynwood and Brenda Hall petitioned for bankruptcy under Chapter 12 and sold their farm shortly thereafter. Petitioners initially proposed a plan of reorganization under which they would pay off outstanding liabilities with proceeds from the sale. The Internal Revenue Service (IRS) objected, asserting a federal income tax of $29,000 on the capital gains from the farm sale. Petitioners amended their proposal" }, { "docid": "8205008", "title": "", "text": "They filed an amended return on June 21, 2005, which showed their 2004 tax as $55,839.00 (exhibit 64). The increased taxes resulted from a decision to revoke an election to treat certain hog building remodeling costs as expenses rather than to depreciate the costs over time. The revocation had the effect of decreasing farm expenses for 2004, thereby increasing income. See 26 U.S.C. § 179. It also had the effect of increasing depreciation expenses for future tax years. Under the initially filed return for 2004, there was self-employment tax of $9,232.00 (exhibit 1, form SE). Under the amended return, the self-employment tax was $15,176.00 (exhibit 64). Knudsens filed their chapter 12 bankruptcy petition on July 1, 2005. They have filed a Fifth Amended and Substituted Chapter 12 Plan (doe. 136) and modified it twice to provide “technical amendments” (docs. 169,162). The essence of the proposed plan is to take advantage of 11 U.S.C. § 1222(a) as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Pub.L. No. 109-8, 119 Stat. 23. Section 1222 deals with the mandatory and permissive contents of a chapter 12 plan. Prior to amendment, subsection 1222(a) provided that [t]he plan shall ... provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507 of this title, unless the holder of a particular claim agrees to a different treatment of such claim. 11 U.S.C. § 1222(a)(2) (prior to amendment in 2005). The section was amended by BAPCPA to state: The plan shall ... provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507, unless — -(A) the claim is a claim owed to a governmental unit that arises as a result of the sale, transfer, exchange, or other disposition of any farm asset used in the debtor’s farming operation, in which case the claim shall be treated as an unsecured claim that is not entitled to priority under section 507, but the debt shall be treated in such manner only if the debtor receives a discharge; or (B)" }, { "docid": "15856005", "title": "", "text": "a capital gains tax of about $29,000. The Internal Revenue Service (“IRS”) filed Proofs of Claim for prepetition debt, but it did not file a Proof of Claim against the Estate for the postpetition capital gains tax. The Debtors’ First Amended Plan, however, proposes to include that tax liability as an unsecured claim in Class 6, which will be paid in full to the extent that funds are available, and otherwise will be paid pro rata with the other Class 6 claims and the balance discharged. The IRS filed a timely objection. The IRS asserts that because the Estate is not a separate taxable entity in a Chapter 12 bankruptcy, the tax liability resulting from the postpetition sale was not incurred by the Estate, but is the responsibility of the Debtors. The Debtors argue that postpe-tition taxes generated by the sale of farming assets are treated as unsecured debt of the Estate and dischargeable under 11 U.S.C. § 1222(a)(2), as amended by BAPC-PA. In support, Debtors cite In re Knudsen, 356 B.R. 480 (Bankr.N.D.Iowa 2006), the only published opinion on the application of amended § 1222(a)(2) to postpetition taxes. III.ISSUE Is the capital gains tax arising from the postpetition sale of farm land a priority claim under § 507, which can be denied full payment in a Chapter 12 plan and treated as an unsecured claim not entitled to priority pursuant to § 1222(a)(2)(A)? IV.JURISDICTION Jurisdiction is proper under 28 U.S.C. § 1334 and § 157(a) and (b)(2)(B), (J) and (L). V.DISCUSSION A. Statutory Framework Chapter 12 was created as a remedy for a “family farmer with regular annual income.” See § 101(19). It is modeled after Chapter 13 and allows eligible farmer debtors to adjust their debts in a similar manner. 8 Collier on Bankruptcy ¶ 1200.01[2], p. 1200-4 (15th ed. rev. 2006). The Chapter 12 debtor remains in possession and control of all the property and continues to operate the farm. § 1203. Upon confirmation of the Chapter 12 debt adjustment plan, all property of the estate vests in the debtor unless the plan provides otherwise. § 1227(b)." }, { "docid": "8205035", "title": "", "text": "in the farmer’s farming operation, assets such as equipment and land. Congress placed the entire burden for such intention on § 1222(a)(2)(A). One respected treatise has described § 1222(a)(2) as follows: The second requirement of section 1222(a) is that the plan provide for payment in full, in deferred cash payments, of all priority claims under section 507, subject to two exceptions. The first is if the holder of the claim agrees to accept less favorable treatment. The second concerns a claim owed to a governmental unit that arises as the result of a sale or other disposition of a farm asset used in the debtor’s farming operation. Any such claim shall be treated as an unsecured claim that is not entitled to priority under section 507, but only if the debtor receives a discharge. The exception for claims owed to governmental units was enacted as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 and has no counterpart in chapter 11 or chapter 13. It presumably was intended to render capital gains taxes on disposition of farm assets into general unsecured claims for purposes of treatment under a chapter 12 plan. This may cause issues with respect to sorting out what portion of a claim held by a governmental unit is attributable to disposition of a farm asset. Another potential issue concerns the scope of the debtor’s discharge. If the intent was to treat such claims as general unsecured claims for plan purposes, the intent was probably also to render them subject to the discharge, although no corresponding change was made to section 1228. 8 Collier on Bankruptcy ¶ 1222.02[2], Legislative history is also helpful on this point. In 1999, Senator Charles E. Grassley introduced S.260 into the 106th Congress. This bill proposed an amendment to § 1222(a)(2) identical to the change made by BAPCPA. Senator Grassley made the following comments on this aspect of the bill amending § 1222(a)(2): “Safety 2000” also helps farmers to reorganize by keeping the tax collectors at bay. Under current law, farmers often face a crushing tax liability if they need" }, { "docid": "7200808", "title": "", "text": "27, 2006. As part of his proposed Chapter 12 plan, Debtor is selling certain assets (real estate and breeding livestock) used in his farming operation. Debtor estimates that his taxable income for tax year 2007 from the sale of such assets will be $175,000.00, and his estimated capital gains taxes as a result of such sales will be $33,108.00. In his plan, Debtor provides for the taxes as follows: CLASS V: INTERNAL REVENUE SERVICE and NEBRASKA DEPARTMENT OF REVENUE: Any income tax resulting from the sale of real estate and livestock as provided in this Plan or any amendments or modifications shall be treated as an unsecured debt without priority under 11 USC § 507 as provided in 11 USC § 1222(2)(A)[sic]. Discussion 11 U.S.C § 1222(a)(2)(A) was added by the 2005 bankruptcy amendments and provides as follows: (a) The plan shall— ... (2) provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507, unless— (A) the claim is a claim owed to a governmental unit that arises as a result of the sale, transfer, exchange, or other disposition of any farm asset used in the debtor’s farming operation, in which case the claim shall be treated as an unsecured claim that is not entitled to priority under section 507, but the debt shall be treated in such manner only if the debtor receives a discharge.... The parties have agreed in the stipulation that Debtor’s proposed sales of real estate and breeding livestock are sales of farm assets used in Debtor’s farming operation. Therefore, the only issue to be decided is whether the taxes resulting from the post-petition sales of such assets can be provided the favorable treatment under 11 U.S.C § 1222(a)(2)(A). As of this date, only two published cases have interpreted § 1222(a)(2)(A) as it relates to post-petition taxes. In In re Knudsen, 356 B.R. 480, 492 (Bankr.N.D.Iowa 2006), the bankruptcy court determined that post-petition taxes resulting from the sale of farm assets used in a farming operation were administrative expenses under 11 U.S.C § 503(b)(1)(B) entitled to priority under" }, { "docid": "4363860", "title": "", "text": "payment in deferred cash payments of all priority claims as defined by § 507. Subsection 1222(a)(2) provided: (a) The plan shall— ‡ ‡ ‡ ‡ $ $ (2) provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507 of this title, unless the holder of a particular claim agrees to a different treatment of such claim. Effective for all cases filed after April 20, 2005, Congress amended § 1222(a)(2) by-adding subsection (A), so the subsection now provides: (a) The plan shall— H< ^ & Hi Hi ^ (2) provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507, unless— (A) the claim is a claim owed to a governmental unit that rises as a result of the sale, transfer, exchange, or other disposition of any farm asset used in the debtor’s farming operation, in which case the claim shall be treated as an unsecured claim that is not entitled to priority under section 507, but the debt shall be treated in such manner only if the debtor receives a discharge; Debtors contend the capital gains taxes arising from the postpetition sale of the farm real property come within the new provision and the plan need not provide for payment in full of this unsecured claim. The IRS contends the new provision is inapplicable to capital gains taxes arising from postpetition dispositions of farm assets in a Chapter 12 case because the tax is the personal liability of the debtor, not an administrative expense of the estate entitled to priority under § 507. Thus, the issue presented is whether the claim for capital gains taxes arising from the postpe-tition sale of real property is a priority claim under § 507, which pursuant to § 1222(a)(2)(A) shall be treated as an unsecured claim not entitled to priority. Section 507 sets forth ten categories of claims that are entitled to priority status. Because holders of priority claims have special rights, “priorities ... are narrowly construed [and a] party must fit clearly within the requirements of the priority" }, { "docid": "15856007", "title": "", "text": "Section 1222(a) prescribes the mandatory contents of a Chapter 12 plan. Under § 1222(a)(2)(A) — the provision at issue — a Chapter 12 plan shall: (2) provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507, unless— (A) the claim is a claim owed to a governmental unit that arises as a result of the sale, transfer, exchange, or other disposition of any farm asset used in the debtor’s farming operation, in which case the claim shall be treated as an unsecured claim that is not entitled to priority under section 507, but the debt shall be treated in such manner only if the debtor receives a discharge; ... Under the plain language of § 1222(a)(2), in order to qualify for treatment as an unsecured claim, the claim must fall within one of the priority categories in § 507. Only claims entitled to priority under § 507 and falling within the terms of § 1222(a)(2)(A) may “be treated as an unsecured claim that is not entitled to priority under section 507.” There are two potential categories under which taxes may fall within § 507: administrative expenses (§ 507(a)(2)) or allowed unsecured claims of governmental units (§ 507(a)(8)). Because § 507(a)(8) claims arise from taxes owed for prepetition years, 4 Collier on Bankruptcy ¶ 507.10[1], p. 507-61 (15th ed. rev.2006), the postpetition taxes in question here do not fall under that section. Consequently, the question is whether the taxes arising from the postpetition sale of the farm qualify as administrative expenses under § 507(a)(2). The pertinent portion of § 507(a)(2) identifies as a priority “administrative expenses allowed under section 503(b).” In turn, § 503(b) provides, in relevant part: (b) After notice and a hearing, there shall be allowed administrative expenses, ... including— (1)(B) any tax— (i) incurred by the estate, except a tax of a kind specified in section 507(a)(8) of this title;.... In order for a tax to qualify as an administrative expense under § 503(b)(1)(B)(i), the tax must: (1) be “incurred by the estate”; and (2) not be specified in §" }, { "docid": "7200809", "title": "", "text": "arises as a result of the sale, transfer, exchange, or other disposition of any farm asset used in the debtor’s farming operation, in which case the claim shall be treated as an unsecured claim that is not entitled to priority under section 507, but the debt shall be treated in such manner only if the debtor receives a discharge.... The parties have agreed in the stipulation that Debtor’s proposed sales of real estate and breeding livestock are sales of farm assets used in Debtor’s farming operation. Therefore, the only issue to be decided is whether the taxes resulting from the post-petition sales of such assets can be provided the favorable treatment under 11 U.S.C § 1222(a)(2)(A). As of this date, only two published cases have interpreted § 1222(a)(2)(A) as it relates to post-petition taxes. In In re Knudsen, 356 B.R. 480, 492 (Bankr.N.D.Iowa 2006), the bankruptcy court determined that post-petition taxes resulting from the sale of farm assets used in a farming operation were administrative expenses under 11 U.S.C § 503(b)(1)(B) entitled to priority under 11 U.S.C § 507(a)(2) and, therefore, were the type of taxes that could be discharged as unsecured claims under 11 U.S.C § 1222(a)(2)(A). In In re Hall, 376 B.R. 741 (Bankr.D.Ariz.2007), the Arizona bankruptcy court reached the opposite conclusion. That court determined that such post-petition taxes are not administrative expenses but are the personal liability of the debtors and, therefore, the provisions of 11 U.S.C § 1222(a)(2)(A) do not apply. Stated simply, the IRS agrees with the court in Hall while Debtor agrees with the court in Knudsen. Specifically, the IRS asserts that the special provisions of § 1222(a)(2)(A) apply only to “claims entitled to priority under section 507....” There are two categories of taxes entitled to priority under § 507. The first is under § 507(a)(8), where various types of pre-petition taxes are listed. Post-petition taxes do not appear to fall under such provision. The second category is under § 507(a)(2), as administrative expenses allowed under § 503(b). Section 503(b) provides for administrative expense treatment of any tax “incurred by the estate.... ” According" }, { "docid": "15856006", "title": "", "text": "the only published opinion on the application of amended § 1222(a)(2) to postpetition taxes. III.ISSUE Is the capital gains tax arising from the postpetition sale of farm land a priority claim under § 507, which can be denied full payment in a Chapter 12 plan and treated as an unsecured claim not entitled to priority pursuant to § 1222(a)(2)(A)? IV.JURISDICTION Jurisdiction is proper under 28 U.S.C. § 1334 and § 157(a) and (b)(2)(B), (J) and (L). V.DISCUSSION A. Statutory Framework Chapter 12 was created as a remedy for a “family farmer with regular annual income.” See § 101(19). It is modeled after Chapter 13 and allows eligible farmer debtors to adjust their debts in a similar manner. 8 Collier on Bankruptcy ¶ 1200.01[2], p. 1200-4 (15th ed. rev. 2006). The Chapter 12 debtor remains in possession and control of all the property and continues to operate the farm. § 1203. Upon confirmation of the Chapter 12 debt adjustment plan, all property of the estate vests in the debtor unless the plan provides otherwise. § 1227(b). Section 1222(a) prescribes the mandatory contents of a Chapter 12 plan. Under § 1222(a)(2)(A) — the provision at issue — a Chapter 12 plan shall: (2) provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507, unless— (A) the claim is a claim owed to a governmental unit that arises as a result of the sale, transfer, exchange, or other disposition of any farm asset used in the debtor’s farming operation, in which case the claim shall be treated as an unsecured claim that is not entitled to priority under section 507, but the debt shall be treated in such manner only if the debtor receives a discharge; ... Under the plain language of § 1222(a)(2), in order to qualify for treatment as an unsecured claim, the claim must fall within one of the priority categories in § 507. Only claims entitled to priority under § 507 and falling within the terms of § 1222(a)(2)(A) may “be treated as an unsecured claim that is not entitled to" }, { "docid": "8205034", "title": "", "text": "(discussing scope of chapter 12 discharge). I conclude that a chapter 12 debtor may treat postpetition income taxes imposed on the debtor’s income earned during the pendency of the case as administrative expenses under section 503 and that the plan may propose payment of such expenses by the estate. I conclude also that the portion of such taxes which may be treated as unsecured under § 1222(a)(2)(A) may be discharged, including any accruing penalties and interest. As has been discussed, § 1222(a)(2)(A) permits treatment of § 507 claims owed to a governmental unit as nonpriority unsecured claims. Section 507 claims include administrative expenses allowed. under § 503(b). 11 U.S.C. § 507(a)(1) (pre-BAPCPA). Section 503(b) administrative expenses include taxes incurred by the estate. Finally, treating such taxes as unsecured permits their discharge without the requirement of payment in full. I agree that the statute is ambiguous. But I believe that Congress intended to help farmers reorganize and stay in business by lessening the burden of prepetition and postpetition taxes arising from the sale of assets used in the farmer’s farming operation, assets such as equipment and land. Congress placed the entire burden for such intention on § 1222(a)(2)(A). One respected treatise has described § 1222(a)(2) as follows: The second requirement of section 1222(a) is that the plan provide for payment in full, in deferred cash payments, of all priority claims under section 507, subject to two exceptions. The first is if the holder of the claim agrees to accept less favorable treatment. The second concerns a claim owed to a governmental unit that arises as the result of a sale or other disposition of a farm asset used in the debtor’s farming operation. Any such claim shall be treated as an unsecured claim that is not entitled to priority under section 507, but only if the debtor receives a discharge. The exception for claims owed to governmental units was enacted as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 and has no counterpart in chapter 11 or chapter 13. It presumably was intended to render capital gains" }, { "docid": "15856004", "title": "", "text": "MEMORANDUM DECISION EILEEN W. HOLLOWELL, Bankruptcy Judge. I. INTRODUCTION The Debtors, relying on a provision added to Chapter 12 by The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Pub.L. 109-8, 119 Stat. 23, seek to have the capital gains tax generated by the postpetition sale of their farm treated as a liability of their Chapter 12 Estate (“Estate”). However, the new provision, 11 U.S.C. § 1222(a)(2)(a), only applies to prepetition taxes that are entitled to priority status under § 507. Because the capital gains tax in question was generated by a postpe-tition sale, it may not be paid through the Chapter 12 plan or included in the Debtors’ Chapter 12 discharge. The reasons for this conclusion are explained in the balance of this decision. II. FACTS AND PROCEDURAL HISTORY The facts are not in dispute. The Debtors filed for Chapter 12 relief on August 9, 2005. The Court granted Debtors’ motion to sell their 320-acre farm for the sum of $960,000 on September 22, 2005. The sale of the farm land generated a capital gains tax of about $29,000. The Internal Revenue Service (“IRS”) filed Proofs of Claim for prepetition debt, but it did not file a Proof of Claim against the Estate for the postpetition capital gains tax. The Debtors’ First Amended Plan, however, proposes to include that tax liability as an unsecured claim in Class 6, which will be paid in full to the extent that funds are available, and otherwise will be paid pro rata with the other Class 6 claims and the balance discharged. The IRS filed a timely objection. The IRS asserts that because the Estate is not a separate taxable entity in a Chapter 12 bankruptcy, the tax liability resulting from the postpetition sale was not incurred by the Estate, but is the responsibility of the Debtors. The Debtors argue that postpe-tition taxes generated by the sale of farming assets are treated as unsecured debt of the Estate and dischargeable under 11 U.S.C. § 1222(a)(2), as amended by BAPC-PA. In support, Debtors cite In re Knudsen, 356 B.R. 480 (Bankr.N.D.Iowa 2006)," }, { "docid": "17602522", "title": "", "text": "Justice SOTOMAYOR delivered the opinion of the Court. Under Chapter 12 of the Bankruptcy Code, farmer debtors may treat certain claims owed to a governmental unit resulting from the disposition of farm assets as dischargeable, unsecured liabilities. 11 U.S.C. § 1222(a)(2)(A). One such claim is for “any tax ... incurred by the estate.” § 503(b)(B)(i). The question presented is whether a federal income tax liability resulting from individual debtors’ sale of a farm during the pendency of a Chapter 12 bankruptcy is “incurred by the estate” and thus dischargeable. We hold that it is not. I A In 1986, Congress enacted Chapter 12 of the Bankruptcy Code, § 1201 et seq., to allow farmer debtors with regular annual income to adjust their debts. Chapter 12 was modeled on Chapter 13, § 1301 et seq., which permits individual debtors with regular annual income to preserve existing assets subject to a “court-approved plan under which they pay creditors out of their future income.” Hamilton v. Lanning, 560 U.S. -, -, 130 S.Ct. 2464, 2469, 177 L.Ed.2d 23 (2010). Chapter 12 debtors similarly file a plan of reorganization. § 1221. To be confirmed, the plan must provide for the full payment of priority claims. § 1222(a)(2). In the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), § 1003, 119 Stat. 186, Congress created an exception to that requirement: “Contents of plan “(a) The plan shall— ;j; ^ -k “(2) provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507, unless— “(A) the claim is a claim owed to a governmental unit that arises as a result of the sale, transfer, exchange, or other disposition of any farm asset used in the debtor’s farming operation, in which case the claim shall be treated as an unsecured claim that is not entitled to priority under section 507, but the debt shall be treated in such manner only if the debtor receives a discharge.” 11 U.S.C. § 1222. Under § 1222(a)(2)(A), certain governmental claims resulting from the disposition of farm assets are downgraded to general, unsecured" }, { "docid": "8205009", "title": "", "text": "Section 1222 deals with the mandatory and permissive contents of a chapter 12 plan. Prior to amendment, subsection 1222(a) provided that [t]he plan shall ... provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507 of this title, unless the holder of a particular claim agrees to a different treatment of such claim. 11 U.S.C. § 1222(a)(2) (prior to amendment in 2005). The section was amended by BAPCPA to state: The plan shall ... provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507, unless — -(A) the claim is a claim owed to a governmental unit that arises as a result of the sale, transfer, exchange, or other disposition of any farm asset used in the debtor’s farming operation, in which case the claim shall be treated as an unsecured claim that is not entitled to priority under section 507, but the debt shall be treated in such manner only if the debtor receives a discharge; or (B) the holder of a particular claim agrees to a different treatment of that claim. 11 U.S.C. § 1222(a)(2)(A) and (B). Although many BAPCPA amendments did not become effective until October 17, 2005, the amendment to § 1222(a)(2) became effective on enactment of BAPCPA on April 20, 2005. As part of his plan to restructure his farming operation, Knudsen plans to sell machinery and equipment and a remainder interest in certain farmground, 120 acres of the 160-acre farm. It is estimated that outside of bankruptcy, the sales would generate significant capital gains. Knudsens concede that in order for them proposed chapter 12 plan to be feasible, the income taxes resulting from the capital gains on the sales must be given the favorable treatment provided by 11 U.S.C. § 1222(a)(2)(A), meaning that a portion of the income taxes must be treated as unsecured debt rather than as priority debt to the IRS, and that if they perform their plan successfully, the unsecured portion must be discharged, including any penalties and interest. Also, Knudsens contend that the same" }, { "docid": "17602523", "title": "", "text": "(2010). Chapter 12 debtors similarly file a plan of reorganization. § 1221. To be confirmed, the plan must provide for the full payment of priority claims. § 1222(a)(2). In the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), § 1003, 119 Stat. 186, Congress created an exception to that requirement: “Contents of plan “(a) The plan shall— ;j; ^ -k “(2) provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507, unless— “(A) the claim is a claim owed to a governmental unit that arises as a result of the sale, transfer, exchange, or other disposition of any farm asset used in the debtor’s farming operation, in which case the claim shall be treated as an unsecured claim that is not entitled to priority under section 507, but the debt shall be treated in such manner only if the debtor receives a discharge.” 11 U.S.C. § 1222. Under § 1222(a)(2)(A), certain governmental claims resulting from the disposition of farm assets are downgraded to general, unsecured claims that are dischargeable after less than full payment. See § 1228(a). The claims are stripped of their priority status. That exception, however, applies only to claims in the plan that are “entitled to priority under section 507” in the first place. Section 507 lists 10 categories of such claims. Two pertain to taxes: One category, § 507(a)(8), covers prepetition taxes, and is inapplicable in this case. The other, § 507(a)(2), covers “administrative expenses allowed under section 503(b),” which in turn includes “any tax ... incurred by the estate.” § 503(b)(B)(i). Thus, for postpetition taxes to be entitled to priority under § 507 and eligible for the § 1222(a)(2)(A) exception, the taxes must be “incurred by the estate.” B Petitioners Lynwood and Brenda Hall petitioned for bankruptcy under Chapter 12 and sold their farm shortly thereafter. Petitioners initially proposed a plan of reorganization under which they would pay off outstanding liabilities with proceeds from the sale. The Internal Revenue Service (IRS) objected, asserting a federal income tax of $29,000 on the capital gains from the" }, { "docid": "21775268", "title": "", "text": "Justice Sotomayor delivered the opinion of the Court. Under Chapter 12 of the Bankruptcy Code, farmer debtors .may treat- certain claims owed to a governmental unit resulting from the disposition of farm assets as discharge-able, unsecured liabilities. 11 U. S. C. § 1222(a)(2)(A). One such claim is for “any tax . . . incurred by the estate.” § 503(b)(l)(B)(i). The question presented is whether a federal income tax liability resulting from individual debtors' sale of a farm during the pendency of a Chapter 12 bankruptcy is “incurred by the estate” and thus dischargeable. We hold that it is not. I A In 1986, Congress enacted Chapter 12 of the Bankruptcy Code, §1201 et seq., to allow farmer debtors with regular annual income to adjust their debts. Chapter 12 was modeled on Chapter 13, § 1301 et seq., which permits individual debtors with regular annual income to preserve existing assets subject to a “court-approved plan under which they pay creditors out of their future income.” Hamilton v. Lanning, 560 U. S. 505, 508 (2010). Chapter 12 debtors similarly file a plan of reorganization. § 1221. To be confirmed, the plan must provide for the full payment of priority claims. § 1222(a)(2). In the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPÁ), § 1003, 119 Stat. 186, Congress created an exception to that requirement: “Contents of plan “(a) The plan shall— “(2) provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507, unless— “(A) the claim is a claim owed to a governmental unit that arises as a result of the sale, transfer, exchange, or other disposition of any farm asset used in the debtor’s farming operation, in which case the claim shall be treated as an unsecured claim that is not entitled to priority under section 507, but the debt shall be treated in such manner only if the debtor receives a discharge.” 11 U.S. c: §1222. Under § 1222(a)(2)(A), certain governmental claims resulting from the disposition of farm assets are downgraded to general, unsecured claims that are dischargeable after less" }, { "docid": "21775302", "title": "", "text": "12 Plan — perhaps to the point where he cannot proceed under Chapter 12 at all. B With this general summary in mind, it is easier to under-, stand the significance of the question this case presents. The question arises out of an Amendment to a Chapter 12 provision. The provision as amended says: “Contents of plan “(a) The plan shall— “(2) provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507, unless— “(A) the claim is a claim owed to a governmental unit that arises as a result of the sale, transfer, exchange, or other disposition of any farm asset used in the debt- or’s farming operation, in which case the claim shall be treated as an unsecured claim that is not entitled to priority under section 507, but the debt shall be treated in such manner only if the debtor receives a discharge; or “(B) the holder of a particular claim agrees to a different treatment of that claim.” § 1222(a) (emphasis added). The Amendment consists of subparagraph (A). At first blush, the Amendment seems to relegate the capital gains tax collector to the status of an ordinary unsecured creditor. See ibid, (exception applies to claims “owed to a governmental unit that arises as a result of the sale ... of any farm asset”). If, as petitioners claim, that is so, then it is unlikely that such a debt could stop a farmer from proceeding under Chapter 12, since its treatment as an ordinary unsecured claim means that the farmer will not necessarily have to pay the debt in full. But if the Government and the majority are right, then the capital gains tax falls outside the category of § 507 priority claims — and therefore falls outside the scope of the Amendment; in fact, it fails outside the bankruptcy proceeding altogether. And the Government then might well be able to collect the debt in full outside the bankruptcy proceeding— even if doing so would reduce the farmer’s assets and future income to the point where the farmer would not" }, { "docid": "8205013", "title": "", "text": "intended a “reclassification” of-a portion of priority tax debt to unsecured debt, the reclassified tax debt must still be paid in full under the “best interest” test of 11 U.S.C. § 1225(a)(4); (4) as to prepetition income taxes, if Congress did not intend “reclassification” of priority tax debt to unsecured debt, then as priority tax debt under § 507(a)(8), it may not be discharged under § 1228(a); (5) as to debtors’ postpetition income taxes, the plan may not, as it proposes, pay any taxes as administrative expenses because such taxes are debts of the individual debtors, not taxes incurred by the bankruptcy estate; also, section 1222(a)(2)(A) treatment is inapplicable to Knudsens’ postpetition taxes because such treatment applies only to priority claims, and postpetition taxes in chapter 12 are neither an administrative expense nor a prepetition priority claim; (6) debtors’ postpetition taxes may not be discharged because such taxes are not administrative expenses under § 503(b)(1)(B). Issue (1) — Tax Treatment of the Slaughter Hogs Section 1222(a)(2)(A) provides beneficial tax treatment for farmers in bankruptcy as to sales or other dispositions of “any farm asset used in the debtor’s farming operation.” IRS and Knudsens disagree on whether that treatment applies to Knudsen’s prepetition sale of slaughter hogs. Slaughter hogs were historically raised and sold by Knudsen for the production of farm income. IRS argues that the phrase “used in the debtor’s farming operation” should be given the same meaning and treatment as in 26 U.S.C. § 1231(b)(3), which provides capital gain treatment for taxes arising from the sale of breeding livestock. In section 1231 of the Internal Revenue Code, “property used in the trade or business” is a defined phrase (see 26 U.S.C. § 1231(b)). Section 1222(a)(2)(A) of the Bankruptcy Code uses the term “any farm asset used in the debt- or’s farming operation.” IRS contends that the word “used” should be given the same meaning in both statutes, limiting the favorable bankruptcy treatment to sale of capital assets. Knudsens disagree. They contend that § 1222(a)(2)(A) treatment should be extended to tax debt arising from the sale or other disposition of" }, { "docid": "7200807", "title": "", "text": "MEMORANDUM THOMAS L. SALADINO, Bankruptcy Judge. This matter was presented to the Court on Confirmation of Debtor’s Chapter 12 Plan (Fil.# 13), and an Objection to Confirmation of Plan filed by the United States of America/Internal Revenue Service (Fil.# 19). A Stipulation of Facts was submitted by the parties (Fil.# 29). James R. Nisley appeared for Debtor, and Henry N. Carriger appeared for the United States/Internal Revenue Service (“IRS”). This memorandum contains findings of fact and conclusions of law required by Federal Rule of Bankruptcy Procedure 7052 and Federal Rule of Civil Procedure 52. This is a core proceeding as defined by 28 U.S.C. § 157(b)(2)(L). Background This case presents the question of whether 11 U.S.C § 1222(a)(2)(A) authorizes Debtor to treat taxes resulting from the post-petition sale of real estate and other farm assets used in Debtor’s farming operation as an unsecured claim without priority. As discussed below, I find that the Debtor may do so. The underlying facts of this case are not in dispute. Debtor filed this Chapter 12 proceeding on December 27, 2006. As part of his proposed Chapter 12 plan, Debtor is selling certain assets (real estate and breeding livestock) used in his farming operation. Debtor estimates that his taxable income for tax year 2007 from the sale of such assets will be $175,000.00, and his estimated capital gains taxes as a result of such sales will be $33,108.00. In his plan, Debtor provides for the taxes as follows: CLASS V: INTERNAL REVENUE SERVICE and NEBRASKA DEPARTMENT OF REVENUE: Any income tax resulting from the sale of real estate and livestock as provided in this Plan or any amendments or modifications shall be treated as an unsecured debt without priority under 11 USC § 507 as provided in 11 USC § 1222(2)(A)[sic]. Discussion 11 U.S.C § 1222(a)(2)(A) was added by the 2005 bankruptcy amendments and provides as follows: (a) The plan shall— ... (2) provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507, unless— (A) the claim is a claim owed to a governmental unit that" }, { "docid": "4363859", "title": "", "text": "Debtors to provide in their Chapter 12 plan that the IRS’ post-petition capital gains tax claim incurred as a result of the IRS’ forced sale of Debtors’ real estate is an unsecured claim.” On September 24, 2007, the IRS filed its Reply and Cross Motion for Partial Summary Judgment, moving for summary judgment on the issue that § 1222(a)(2)(A) does not apply to capital gains from postpetition sales. There are no material facts in controversy. The question before the Court is an issue of law which has been fully briefed. Oral arguments have been heard. The Court is now ready to rule and, for the reasons stated below, grants the Debtors’ motion and denies the IRS’ motion, finding that capital gains taxes arising from post-petition sales of assets by a Chapter 12 debtor are governed by § 1222(a)(2)(A). ANALYSIS AND CONCLUSIONS OF LAW. Section 1222 addresses the requirements for confirmation of a Chapter 12 plan. Prior to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), absent agreement otherwise, § 1222(a)(2) required full payment in deferred cash payments of all priority claims as defined by § 507. Subsection 1222(a)(2) provided: (a) The plan shall— ‡ ‡ ‡ ‡ $ $ (2) provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507 of this title, unless the holder of a particular claim agrees to a different treatment of such claim. Effective for all cases filed after April 20, 2005, Congress amended § 1222(a)(2) by-adding subsection (A), so the subsection now provides: (a) The plan shall— H< ^ & Hi Hi ^ (2) provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507, unless— (A) the claim is a claim owed to a governmental unit that rises as a result of the sale, transfer, exchange, or other disposition of any farm asset used in the debtor’s farming operation, in which case the claim shall be treated as an unsecured claim that is not entitled to priority under section 507, but the debt shall be" }, { "docid": "17602556", "title": "", "text": "the point where he cannot proceed under Chapter 12 at all. B With this general summary in mind, it is easier to understand the significance of the question this case presents. The question arises out of an amendment to a Chapter 12 provision. The provision as amended says: “Contents of plan “(a) The plan shall— $ ‡ ‡ ‡ ‡ ‡ “(2) provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507, unless— “(A) the claim is a claim owed to a governmental unit that arises as a result of the sale, transfer, exchange, or other disposition of any farm asset used in the debtor’s farming operation, in which case the claim shall be treated as an unsecured claim that is not entitled to priority under section 507, but the debt shall be treated in such manner only if the debtor receives a discharge; or “(B) the holder of a particular claim agrees to a different treatment of that claim.” § 1222(a) (emphasis added). The Amendment consists of subparagraph (A). At first blush, the Amendment seems to relegate the capital gains tax collector to the status of an ordinary unsecured creditor. See ibid, (exception applies to claims “owed to a governmental unit that arises as a result of the sale ... of any farm asset”). If, as petitioners claim, that is so, then it is unlikely that such a debt could stop a farmer from proceeding under Chapter 12, since its treatment as an ordinary unsecured claim means that the farmer will not necessarily have to pay the debt in full. But if the Government and the majority are right, then the capital gains tax falls outside the category of § 507 priority claims — -and therefore falls outside the scope of the Amendment; in fact, it falls outside the bankruptcy proceeding altogether. And the Government then might well be able to collect the debt in full outside the bankruptcy proceeding — even if doing so would reduce the farmer’s assets and future income to the point where the farmer would not" } ]

[ { "docid": "5450317", "title": "", "text": "839 F.2d 220, 221 (4th Cir.), cer., denied, 488 U.S. 826, 109 S.Ct. 76, 102 L.Ed.2d 53 (1988); In re South Atlantic Financial Corp., 767 F.2d 814, 817 (11th Cir.1985), cert. denied, 475 U.S. 1015, 106 S.Ct. 1197, 89 L.Ed.2d 311 (1986). The debtor contends that IRS lost its right to file its own, higher proof of claim when the bar date passed and it neither filed nor requested an extension of time. Further, Kolstad contends, the IRS cannot avoid the bar date simply because the debt- or elected to file a proof of claim and so bring IRS within the scope of his reorganization proceeding. The bankruptcy rules furnish the exclusive time periods in which a creditor may assert a claim; the debtor’s assertion of the creditor’s claim after the creditor’s bar date has passed cannot reinstate the creditor’s ability to protect itself. This analysis is plausible only because it neglects to encompass all of the Code provisions and rules that bear upon the claims process in bankruptcy. To determine whether IRS was authorized to amend Kolstad’s proof of claim for it, we must consider more broadly the role of bar dates and claims adjudication in bankruptcy cases. Although bankruptcy law has elements of gamesmanship and the consequences for missing various bankruptcy deadlines are severe , the bankruptcy law is not supposed to function merely as a procedural gauntlet that only the most adroit or best represented creditors can overcome. The deadlines have a purpose: they enable a debtor and his creditors to know, reasonably promptly, what parties are making claims against the estate and in what general amounts. The claims filing deadlines, however, by no means fix in stone the final “allowed” amounts of claims. The proof of claim is prima facie evidence of the amount and origin of the debt owed, Bankruptcy Rule 3001(f), but any party in interest may object to a proof of claim. 11 U.S.C. § 502(a); Bankruptcy Rules 3007 (objections); 3008 (reconsideration of claims). There is no bar date or deadline for filing objections. Once an objection is filed, the final amount of" } ]

[ { "docid": "1128193", "title": "", "text": "his peti tion. Tr. at 468. Based upon the Union’s unrefuted evidence indicating that the Debtor made false oaths that were both material and fraudulent, we have no alternative but to deny the Debtor a discharge pursuant to § 727(a)(4)(A). Although we deny the Debtor a discharge pursuant to § 727(a)(4)(A), our inquiry does not end there. The Union filed a proof of claim on May 5, 1986 in the amount of $146,862.10 plus an undetermined additional amount. The aggregate amount is set forth in the Final Complaint as modified by the pre-trial order. Pursuant to § 502(a), the Union’s claim “is deemed allowed, unless a party in interest ... objects.” Such an objection may be made at any time. United States v. Kolstad (In re Kolstad), 928 F.2d 171, 174 (5th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 419, 116 L.Ed.2d 439 (1991). Pursuant to Bankruptcy Rule 3007, “[a]n objection to the allowance of a claim shall be in writing and filed.” The Debtor did not file a formal objection to the Union’s claim. However, because the Debtor denied in his answer that he owes any debt to the Union, we treat the Debtor’s answer as an objection to the allowance of the Union’s claim. If an objection to a claim is made, the court shall determine the amount of such claim after notice and a hearing. § 502(b). Pursuant to Bankruptcy Rule 3007, “[a] copy of the objection with notice of the hearing thereon shall be ... delivered to the claimant ... at least 30 days prior to the hearing.” Because the Union had more than 30 days’ notice of the Debtor’s answer, we find that the trial in this case served as the hearing on the Debtor’s objection to the allowance of the Union’s claim. Thus, we proceed to determine whether the Debtor is liable to the Union for the amounts in Counts 3 through 12 of the Union’s Final Complaint. We turn to the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”) § 501(a), 29 U.S.C. § 501(a), which we find to be controlling on the" }, { "docid": "18844101", "title": "", "text": "of law de novo, but uphold the bankruptcy court’s findings of fact unless they are clearly erroneous. In re Rubin, 875 F.2d 755, 758 (9th Cir.1989). ANALYSIS I. The Validity of the Hearing Trust Corporation contends as an initial matter that it was entitled to an adversary proceeding to determine the validity of its security interest. The bankruptcy court hearing, it says, did not qualify as such. Rather, the hearing had been set for the limited purpose of considering the merits of Copper King’s second amended plan for reorganization. It was thus an inadequate forum in which to consider the more complicated issues surrounding its lien on the Copper King property. In any event, appellant argues, its attorneys were not afforded sufficient notice that the topic would be broached and were unprepared to debate it. Appellees objected to Trust Corporation’s claim pursuant to 11 U.S.C. § 502(a) (1988). Bankruptcy Rule 3007 provides: An objection to the allowance of a claim shall be in writing and filed with the court. A copy of the objection with notice of the hearing thereon shall be mailed or otherwise delivered to the claimant, the debtor or debtor in possession and the trustee at least 30 days prior to the hearing. If an objection to a claim is joined with a demand for relief of the kind specified in Rule 7001, it becomes an adversary proceeding. Bankr. Rule 3007 (emphasis supplied). Thus an adversary proceeding is required when the objector demands relief “of the kind specified in Rule 7001.” Id. Rule 7001, in turn, lists ten kinds of relief, including relief in the form of “a proceeding ... (2) to determine the validity, priority, or extent of a lien or other interest in property_” Bankr. Rule 7001. By contesting the secured status of Trust Corporation’s claim, appellees challenged an aspect of its lien on the Copper King property. Their objection therefore normally would have triggered the requirement of an adversary proceeding. Rule 3007, in addition, provides that notice shall be given to the opposing side within thirty days of such hearing. Trust Corporation received twenty-five" }, { "docid": "4451391", "title": "", "text": "such plan provides for the value of the collateral. The Court’s analysis begins with the plain language of the provisions governing the allowance of claims. Section 501(a) permits a creditor to file a proof of claim. Federal Rule of Bankruptcy Procedure 3001 delineates the basic requirements of a proof of claim. Proof of a secured claim should be filed in writing and must be accom panied by documentation that the security interest has been perfected. Fed.R.Bankr.P. 3001(d). In a Chapter 13 case, the proof of claim shall be filed within ninety days after the first date set for a meeting of creditors. Fed.R.Bankr.P. 3002. Section 502(a) provides that a claim filed pursuant to Section 501 is deemed allowed unless a party in interest objects. 11 U.S.C. § 502(a). A proof of claim executed and filed in accordance with the Bankruptcy Rules constitutes prima facie evidence of the validity and amount of the claim. Fed. R.Bankr.P. 3001(f). The procedure for objecting to the allowance of a proof of claim is established in part by Federal Rule of Bankruptcy Procedure 3007, which provides: An objection to the allowance of a claim shall be in wilting and filed. A copy of the objection with notice of the hearing thereon shall be mailed or otherwise delivered to the claimant, the debtor or debtor in possession and the trustee at least 30 days prior to the hearing. If an objection to a claim is joined with a demand for relief of the kind specified in Rule 7001, it becomes an adversary proceeding. Fed.R.Bankr.P. 3007. Unlike a proof of claim, which must be filed before the bar date, an objection to a proof of claim may be filed at any time. In re Thompson, 965 F.2d 1136, 1147 (1st Cir.1992) (citing In re Kolstad, 928 F.2d 171, 174 (5th Cir.), cert. denied, — U.S. —, 112 S.Ct. 419, 116 L.Ed.2d 439 (1991)). Upon the filing of an objection, the objecting party must produce evidence tending to defeat the claim that is of a probative force equal to that of the creditor’s proof of claim. In re" }, { "docid": "11298256", "title": "", "text": "of a right to contest claims puts all parties on notice that a creditor’s claim may be challenged. The time between the filing of a case and confirmation will be shortened by giving effect to general reservations of rights. Creditors may vote and object with this provision in mind. Weidel, 208 B.R. at 853. 2. No Deadline for Objections to Claims The second reason that the Court finds that a general reservation of the right to object to claims is sufficient to preserve that right post-confirmation, is that neither the Bankruptcy Code nor the Rules provide a bar date or deadline for filing objections to claims. See, e.g., In re Thompson, 965 F.2d 1136, 1147 (1st Cir.1992) (an objection to proof of claim may be filed at any time). While Bankruptcy Code sections 501 and 502 provide for the filing and allowance of claims, and for objecting to those claims, they do not set a deadline for doing so. The Bankruptcy Rule which governs objections to claims, Rule 3007, similarly fails to set a deadline for objections to claims. Rule 3007 provides: OBJECTIONS TO CLAIMS: An objection to the allowance of a claim shall be in writing and filed. A copy of the objection with notice of hearing thereon shall be mailed or otherwise delivered to the claimant, the debtor or debtor in possession and the trustee at least 30 days prior to the hearing. If an objection to a claim is joined with a demand for relief of the kind specified in Rule 7001, it becomes an adversary proceeding. The Code and Rules do not set a bar date for objecting to claims because a debtor cannot always evaluate a claim, or the value of objecting to that claim, until administration of the case has commenced, as it may not be known until late in the administration of the case whether there will be any dividend. Rule 3007 sets no time period within which the trustee must object to the allowance of a claim. A cutoff date would be inappropriate, for in many cases it may not be known" }, { "docid": "7701254", "title": "", "text": "claim. Fed.R.Bankr.P 3001(f) (2002). Under 11 U.S.C. § 501(a) a creditor may file a proof of claim according to certain time restrictions outlined in Rule 3002(c). If the creditor does not file a proof of claim in a timely manner, then the debtor or the trustee may file a proof of such claim. 11 U.S.C. 501(c) (2002). The primary purpose of permitting the debtor or trustee to file a proof of claim is to protect the debtor if the creditor’s claim is nondischargeable. In re Nettles, 251 B.R. 899, 902 (Bankr.M.D.Fla.2000). Rule 3004 specifies when a proof of claim filed by the debtor and trustee is considered timely. As such, the debtor or trustee may file a proof of claim in the name of the creditor within 30 days after the expiration of the time for filing claims begins to apply to the creditor. However, the Bankruptcy Court has no authority to prohibit the filing of an untimely proof of claim. In re Miranda, 269 B.R. 737, 740 (Bankr.S.D.Tex.2001). 2. Allowance and Disallowance of Claims Under 11 U.S.C. § 502, a proof of claim filed pursuant to § 501 is allowed unless a party in interest objects. There is no corresponding deadline for objecting to a proof of claim. Miranda, 269 B.R. at 741 (citing Fed.R.Bankr.P. 3007 and Collier on Bankruptcy ¶ 502.02[3][e] (15th ed.1999)). When a party objects to an untimely proof of claim the bankruptcy court shall disallow that claim, except as permitted by paragraphs (1), (2), and (3) of § 726 or when filed by a governmental unit before 180 days after the order for relief. 11 U.S.C. § 502(b)(9) (2002). Because the bankruptcy court has no authority to prohibit the filing an untimely proof of claim, that claim is allowed unless a party in interest objects. Miranda, 269 B.R. at 740-41. 3. Application in the Instant Case Plaintiff filed two proof of claims on behalf of the Defendant. The proof of claims were filed four (4) years into Plaintiffs chapter 13 case and were untimely. The proof of claims dealt with Defendant’s 1994 and 1995 claim" }, { "docid": "12811221", "title": "", "text": "eases by Rule 9024. See Property Damage Claimants Identified on Exhibit “A” v. H.K. Porter Co., Inc. (In re H.K. Porter Co., Inc.), 156 B.R. 149, 150 (Bankr.W.D.Pa.1993). CDC argues that there are two separate bases that would warrant this Court to reconsider the December 10, 1996 order: (1) Debtor’s failure to provide CDC’s counsel with notice of the Objection despite counsel’s specific requests that she be served with such a notice, and (2) CDC’s failure to timely respond to the objection was the result of excusable neglect. I. Failure to Notify CDC Counsel. The subject motion deals with a question which I do not find addressed in the reported cases, namely, whether a debtor, when it seeks to disallow and expunge a proof of claim pursuant to Rule 3007, is required to notify the claimant’s counsel who has filed a notice of appearance and request for service of papers pursuant to Rule 9010. My analysis of the bankruptcy rules leads me to con-elude that the debtor cannot ignore the rights of the creditor which arise out of the notice of appearance and request for service filed pursuant to Rule 9010. “The procedure for filing objections to the allowance of claims is established in part by Fed. R, Bankr.P. 3007.” United States v. Levoy (In re Levoy), 182 B.R. 827, 833 (9th Cir. BAP 1995). The objection must be in writing and filed with the bankruptcy court, and a copy of the objection must be mailed or otherwise delivered to the claimant. See Rule 3007. As a bankruptcy appellate panel has recently noted, Rule 3007 does not provide the manner for service of the objection to a proof of claim. See Levoy, 182 B.R. at 833. “Most authorities agree that claim objections are contested matters.” Id. at 834. See also United States v. Oxylance Corp., 115 B.R. 380, 380 (N.D.Ga.1990); 9 Collier On Bankruptcy, ¶3007.01[1] (Lawrence D. King ed., 15th ed.1997). Cf. Advisory Committee Note accompanying Rule 3006 (1983) (providing that “[t]he filing of a claim does not commence an adversary proceeding but the filing of an objection to the" }, { "docid": "11087968", "title": "", "text": "objection, Bankruptcy Rule 3007 states: An objection to the allowance of a claim shall be in writing and filed. A copy of the objection with notice of the hearing shall be mailed or otherwise delivered to the claimant, the debtor or debtor in possession and the trustee at least 30 days prior to the hearing. If an objection to a claim is joined with a demand for relief of the kind specified in Rule 7001, it becomes an adversary proceeding. Fed. R. Bankr.P. 3007. While these provisions fail to address whether a creditor may object to a proof of claim, the Advisory Committee Note to Bankruptcy Rule 3007 elaborates: While the debtor’s other creditors may make objections to the allowance of a claim, the demands of orderly and expeditious administration have led to a recognition that the right to object is generally exercised by the trustee. Pursuant to § 502(a) of the Code, however, any party in interest may object to a claim. But under § 704 the trustee, if any purpose would be served thereby, has the duty to examine proofs of claim and object to improper claims. Fed. R. Bankr.P. 3007 (Advisory Committee Note 1983). Therefore, generally the Trustee is the proper party to review and object to proofs of claim. The Court finds the arguments of the Trustee and Greenleaf to be persuasive. The majority of courts have ruled that a chapter 7 trustee alone may file objections to proofs of claim. Kowal v. Malkemus (In re Thompson), 965 F.2d 1136 (1st Cir. 1992); In re Dominelli, 820 F.2d 313, 317 (9th Cir.1987) (trustee “optimal party” to object); In re I & F Corp., 219 B.R. 483, 484 (Bankr.D.Ohio 1998); In re Fox, 64 B.R. 148, 151 (Bankr.N.D.Ohio 1986) (al though a creditor is a “party in interest” under section 502, the efficient administration of the estate dictates that the right to object to claims should be exercised by the trustee). See also, In re Willemain, 764 F.2d 1019, 1022 (4th Cir.1985) (generally debtor lacks standing to appeal proposed sale); Kapp v. Naturelle, Inc., 611 F.2d 703," }, { "docid": "18547930", "title": "", "text": "time during the life of the plan. This finding was not clearly erroneous. Bitters also implicitly raises the issue of equitable estoppel in that the lack of objection lulled him into dismissing the remaining claims. Once he changed his position, NEC filed the objection. While the events happened in that order, element three of this doctrine was not met: (1) The party to be estopped knows the facts, (2) he or she intends that his or her conduct will be acted on or must so act that the party invoking estoppel has a right to believe it is so intended, (3) the party invoking estoppel must be ignorant of the true facts, and (4) he or she must detrimentally rely on the former’s conduct. United, States v. Hemmen, 51 F.3d 883, 892 (9th Cir.1995). Bitters was charged with the knowledge that NEC could still file an objection. He should have known that Fed.R.Bankr.P. 3007 does not provide a time limit for objections to proofs of claims. An objection to a proof of claim may be filed at any time. In re Consolidated Pioneer Mortg., 178 B.R. 222, 225 (9th Cir. BAP 1995). SANCTIONS ON APPEAL NEC has requested sanctions for a frivolous appeal. Under Federal Rule of Appellate Procedure 38, made applicable by BAP rule 13, the panel may award sanctions when “the result is obvious, or the appellant’s arguments or error are wholly without merit.” In re Burkhart, 84 B.R. 658, 661 (9th Cir. BAP 1988). While the greater part of Bitters’ arguments was unsupported by statute or case law, the temporal aspect of § 502(b)(7) is an issue that is yet undecided by the higher courts. The appeal was not wholly without merit, and sanctions are not warranted. Taylor AG Indus, v. Pure-Gro, 54 F.3d 555, 563 (9th Cir.1995). CONCLUSION The bankruptcy court correctly applied § 502(b)(7) to cap Bitters’ claim for damages which arose from the breach of an employment contract. The bankruptcy court did not abuse its discretion by sustaining NEC’s objection as timely under Fed.R.Bankr.P. 3007, and as anticipated in the provisions of NEC’s confirmed" }, { "docid": "16054127", "title": "", "text": "amount of the claim. Bankr.R. 3001(f). The procedure for objecting to a claim is established in part by Bankruptcy Rule 3007, which provides: An objection to the allowance of a claim shall be in writing and filed with the court. A copy of the objection with notice of the hearing thereon shall be mailed or otherwise delivered to the claimant, the debtor or debtor in possession and the trustee at least 30 days prior to the hearing. If an objection to a claim is joined with a demand for relief of the kind specified in Rule 7001, it becomes an adversary proceeding. The objection to a claim initiates a contested matter unless the objection is joined with a counterclaim asking for the kind of relief specified in Bankruptcy Rule 7001. In addition to the requirements of Rule 9014, which governs contested matters, Rule 9004 specifies that the objection contain a proper caption designating it an objection to a proof of claim. It has been said that the filing of a proof of claim is tantamount to the filing of a complaint in a civil action, see Nortex Trading Corp. v. Newfield, 311 F.2d 163 (2d Cir.1962), and the trustee’s formal objection to the claim, the answer. See 3 Collier on Bankruptcy 1f 502.01, at 502-16. Upon the filing of an objection, the trustee must produce evidence tending to defeat the claim that is of a probative force equal to that of the ereditor’s proof of claim. Id. at 502-17; see also In re Eastern Fire Protection, Inc., 44 B.R. 140 (Bankr.E.D.Pa.1984). In the case sub judice, neither the trustee nor Simmons filed an objection to Saveli’s proof of secured claim before confirmation. Simmons’ Chapter 13 plan, which listed Saveli’s claim as unsecured but disputed, cannot be deemed to constitute such an objection. The purpose of filing an objection is to join issue in a contested matter, thereby placing the parties on notice that litigation is required to resolve an actual dispute between the parties. See Bankr.R. 9014 advisory committee note. An objection to a proof of claim filed in accordance" }, { "docid": "4451392", "title": "", "text": "of Bankruptcy Procedure 3007, which provides: An objection to the allowance of a claim shall be in wilting and filed. A copy of the objection with notice of the hearing thereon shall be mailed or otherwise delivered to the claimant, the debtor or debtor in possession and the trustee at least 30 days prior to the hearing. If an objection to a claim is joined with a demand for relief of the kind specified in Rule 7001, it becomes an adversary proceeding. Fed.R.Bankr.P. 3007. Unlike a proof of claim, which must be filed before the bar date, an objection to a proof of claim may be filed at any time. In re Thompson, 965 F.2d 1136, 1147 (1st Cir.1992) (citing In re Kolstad, 928 F.2d 171, 174 (5th Cir.), cert. denied, — U.S. —, 112 S.Ct. 419, 116 L.Ed.2d 439 (1991)). Upon the filing of an objection, the objecting party must produce evidence tending to defeat the claim that is of a probative force equal to that of the creditor’s proof of claim. In re Simmons, 765 F.2d 547, 552 (5th Cir.1985). In this matter, Edison filed a proof of claim in the amount of $11,881.85 which Debtor has objected to contending the claim is secured only to the extent of $3,161.50. The Debtor does not contest the secured nature of the claim which was established by Edison attaching the security agreement and the certificate of title to evidence proof that Edison’s security interest is perfected. The Debtor does contest the value of the property by which Edison’s claim is secured. However, the amount of the secured portion of the claim cannot be challenged at this time. Although the Debtor is not time barred from objecting to the allowance of a proof of claim, the Debtor is precluded from challenging the value of Debtor’s vehicle because the Debtor waived that opportunity at the time of confirmation. The Fifth Circuit explained the reasoning behind not allowing a debtor to object to a secured claim after plan confirmation in the decision of In re Simmons, 765 F.2d 547 (5th Cir.1985). In Simmons," }, { "docid": "1908114", "title": "", "text": "their claim objection. A. CBIC’s Secured Claim was Deemed Allowed 1. Section 502 To be paid from the estate, a claim must be “allowed” under § 502 in one of three ways: “first, a proof of claim is filed or deemed filed and no party objects; second, a claim is allowed by the court after an objection is filed; and third, a claim is estimated by the court under the provisions of section 502(c).” 4 Collier on Bankruptcy ¶ 502.01, p. 502-9 (Lawrence P. King et al. eds., 15th ed. rev.2002). The CBIC claim fell into the first category, and was “deemed” allowed. Generally, absent a written objection from a party in interest, a claim is “deemed allowed” upon the filing of a timely proof of claim. 11 U.S.C. §§ 501(a), 502(a); Fed.R.Bankr.P. 3002. See Fireman’s Fund Mortgage Corp. v. Hobdy (In re Hobdy), 130 B.R. 318, 320 (9th Cir. BAP 1991) (filed claim is “presumptively valid” unless a written objection is filed). A proof of claim properly executed and filed is prima facie evidence of the validity and amount of the creditor’s claim. Fed. R.Bankr.P. 3001(f). Deemed allowance entitles the claimant to participate in a distribution of the estate’s assets. Ashford v. Consol Pioneer Mortgage (In re Consol. Pioneer Mortgage), 178 B.R. 222, 225 (9th Cir. BAP 1995), aff'd mem., 91 F.3d 151, 1996 WL 393533 (9th Cir.1996); Fed. R.Bankr.P. 3021. Although a claim may initially be deemed allowed, it may thereafter be disallowed, in full or in part, following affirmative action by the debtor or trustee and by court order. If an objection to the proof of claim is filed, a “contested matter” is initiated, sometimes in the form of an adversary proceeding. See 11 U.S.C. § 502(b); Fed. R.Bankr.P. 3007. In that event, the proof of claim will not be allowed until the bankruptcy court determines the proper amount of the claim. See 11 U.S.C. § 502(b). CBIC filed a proof of secured claim. Prior to plan confirmation, Debtors did not object to the claim, either pursuant to the claims objection process, or by initiating an adversary" }, { "docid": "12375741", "title": "", "text": "under 11 U.S.C. section 502(a). Thus, Debtors may not attempt to modify the IRS’ claim through the plan. The IRS further argued that pursuant to 11 U.S.C. section 507(a)(7) pre-petition interest on taxes receiving priority status are also considered priority claims. THE NECESSITY OF FILING A FORMAL OBJECTION The IRS argues that its claim must be deemed allowed since the debtors failed to file an objection as required by 11 U.S.C. section 502(a) and Bankruptcy Rule 3007. The Court agrees. Section 502(a) provides: (a) A claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest, including a creditor of a general partner in a partnership that is a debtor in a case under Chapter 7 of this title, objects. Rule 3007 provides: An objection to the allowance of a claim shall be in writing and filed with the court. A copy of the objection with notice of the hearing thereon shall be mailed or otherwise delivered to the claimant, the debtor or debtor in possession and the trustee at least 30 days prior to the hearing.... Thus, the Bankruptcy Code has established a system for filing claims under which all claims are deemed allowed unless an objection to the claim is filed by the debtor. Clearly, the Code and Rules do not envision the use of a plan for objecting to proofs of claim. In re Simmons, 765 F.2d 547, 552 (5th Cir.1985). Accordingly, because no objection to the IRS’ claim was filed by the Debtors, the IRS’ claim should be deemed allowed. INTEREST ON PRIORITY TAXES Even if the Debtors had properly objected to the IRS’ proof of claim, their argument that interest on taxes qualifying for priority status under section 507(a)(7) is not also granted priority status would fail. Section 507(a)(7) provides priority for allowed unsecured claims of governmental units to the extent that such claims are for: (A) A tax on or measured by income or gross receipts— (i) for a taxable year ending on or before the date of the filing of the petition" }, { "docid": "23678045", "title": "", "text": "applied to their 1997 federal income tax liability. Debtors’ position is that a Proof of Claim that is filed in an amount that is grossly overstated should be considered a violation of the automatic stay. The Court declines to accept Debtors’ position for the following reasons. First, the filing of a Proof of Claim is expressly provided for by Fed. R.Bankr.P. 3002, and is necessary for a creditor to protect its interests in a Chapter 13 case. Fed.R.Bankr.P. 3002(a), in fact, provides that “[a]n unsecured creditor or an equity security holder must file a proof of claim or interest for the claim or interest to be allowed, except as provided in Rules 1019(3), 3003, 3004, and 3005.” In the instance where a dispute, arises over the amount listed on the proof of claim, debtors are protected by Fed.R.Bankr.P. 3007 which provides that “[a]n objection to the allowance of a claim shall be in writing and filed. A copy of the objection with notice of the hearing thereon shall be mailed or otherwise delivered to the claimant, the debtor or debtor in possession and the trustee at least 30 days prior to the hearing.” Therefore, the Bankruptcy Code expressly delineates the manner in which disputes over a claim are to be initiated. Second, the Court finds that the automatic stay “ ‘does . not operate against the court with jurisdiction over the bankruptcy.’ ” Robert Christopher Assoc. v. Franklin Realty Group, Inc. (In re FRG, Inc.), 121 B.R. 710, 714 (Bankr.E.D.Pa.1990) (citing In re Teerlink Ranch Ltd., 886 F.2d 1233, 1237 (9th Cir.1989)); see also In re Briarwood Hills Assoc., 237 B.R. 479, 480 (Bankr.W.D.Mo.1999) (“[T]he automatic stay does not apply to proceedings in the bankruptcy court having jurisdiction over the debtor. Numerous courts have held that the automatic stay implicitly does not bar a party from commencing a proceeding against the debtor in the court where the bankruptcy petition is pending.”); In re Bird, 229 B.R. 90, 95 (Bankr.S.D.N.Y.1999) (citations omitted) (“The purposes of the automatic stay, to preserve the assets of the debtor for the benefit of all creditors" }, { "docid": "10557566", "title": "", "text": "mailed or otherwise delivered to the claimant ... at least 30 days prior to the hearing. Fed.R.Bankr.P. 3007(a). It appears undisputed that the Debtors complied with this requirement by mailing the Objection to the IRS. The Court is aware that some cases have found that because an objection to claim is a type of contested matter it therefore must be served the same as a summons and complaint. These cases rely on Fed.R.Bankr.P. 9011, entitled “Contested Matters”, which provides in relevant part: The motion shall be served in the manner provided for service of a summons and complaint by Rule 7004. Fed.R.Bankr.P. 9011(b). See, e.g., United States v. Hernandez, 173 B.R. 430 (N.D.Ala.1994). Although this position has some superficial appeal, for a number of reasons the Court concludes that the better view is that Fed.R.Bankr.P.3007(a) provides the method for proper “service” of the Objection. First, since Rule 3007 is the specific rule concerning objections to claims it controls service of such objections rather than the more general Rule 9011(b). See, 9 Collier on Bankruptcy ¶ 3007.01[4]. Second, Rule 9011(b) speaks to “motions” and is preceded by Rule 9011(a), which states in pertinent part: In a contested matter in a case under the Code not otherwise governed by these rules, relief shall be requested by motion, and reasonable notice and opportunity for hearing shall be afforded the party against whom relief is sought, (emphasis added). The emphasized language indicates that where the Federal Rules of Bankruptcy Procedure provide an alternative procedure for a specific type of contested matter, as they do with respect to service of objections to claims under Rule 3007, that alternative procedure applies. Put another way, the Objection is not a “motion” for purposes of Rule 9011(b) and Debtors did not need to comply with the service requirements of that Rule. See, e.g., In re Hawthorne, 326 B.R. 1 (Bankr.D.D.C.2005) (reviewing all of the Federal Rules of Bankruptcy Procedure and finding seven instances of contested matters commenced by objections rather than motions, in two of which, objections to claims and objections to exemptions (Rule 1003(b) ), the applicable" }, { "docid": "11087967", "title": "", "text": "Bakke, 243 B.R. 753, 755-56 (Bankr.D.Ariz.1999); In re Weeks, Thomas & Lysaught, Chartered, 97 B.R. 46, 47 (D.Kan.1988); In re The Charter Co., 68 B.R. 225, 227 (Bankr. M.D.Fla.1986); In re Parker Montana Co., 47 B.R. 419, 421-22 (D.Mont.1985)). Since the Chapter 7 Trustee is prosecuting objections to proofs of claim, Greenleaf contends that Huffman lacks standing to file the Motions for Summary Judgment, as well as to prosecute the Trustee’s objection. TV. ANALYSIS The procedure for objecting to a proof of claim is set forth in sections 502(a) and 704(5) of the Bankruptcy Code, as well as in Bankruptcy Rule 3007. Section 502(a) provides, in relevant part, “[a] claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest ... objects.” 11 U.S.C. § 502(a). Section 704(a)(5) mandates that the trustee shall “if a purpose would be served, examine proofs of claim and object to the allowance of any claim that is improper.” 11 U.S.C. § 704(a)(5). Establishing the procedure for filing an objection, Bankruptcy Rule 3007 states: An objection to the allowance of a claim shall be in writing and filed. A copy of the objection with notice of the hearing shall be mailed or otherwise delivered to the claimant, the debtor or debtor in possession and the trustee at least 30 days prior to the hearing. If an objection to a claim is joined with a demand for relief of the kind specified in Rule 7001, it becomes an adversary proceeding. Fed. R. Bankr.P. 3007. While these provisions fail to address whether a creditor may object to a proof of claim, the Advisory Committee Note to Bankruptcy Rule 3007 elaborates: While the debtor’s other creditors may make objections to the allowance of a claim, the demands of orderly and expeditious administration have led to a recognition that the right to object is generally exercised by the trustee. Pursuant to § 502(a) of the Code, however, any party in interest may object to a claim. But under § 704 the trustee, if any purpose would be served" }, { "docid": "22864546", "title": "", "text": "The Ashfords timely filed their notice of appeal. II.ISSUES A. Whether PLC’s objection to the Ash-fords’ proof of claim was timely filed. B. Whether the bankruptcy court’s denial of the Ashfords’ claim in full was clearly erroneous. C. Whether the bankruptcy court abused its discretion in denying the Ashfords’ motion for reconsideration. III.STANDARD OF REVIEW The BAP reviews questions of statutory interpretation de novo. In re Pikush, 157 B.R. 155, 156 (9th Cir. BAP 1993), aff'd, 27 F.3d 386 (9th Cir.1994). Whether there was compliance with Rule 3007 is a question of fact reviewed under the clearly erroneous standard. In re Cleanmaster Indus., Inc., 106 B.R. 628, 631. (9th Cir. BAP 1989). Similarly, compliance with Rule 3001 is also a question of fact reviewed for clear error. A bankruptcy court’s denial of a motion for reconsideration of an allowance or disallowance of a claim under § 502(j) and Rule 3008 is reviewed for an abuse of discretion. In re Int’l Yacht & Tennis, Inc., 922 F.2d 659, 662 (11th Cir.1991); Cleanmaster, 106 B.R. at 630. IV.DISCUSSION A. Timeliness of PLC’s Objection to the Ashford’s Proof of Claim Section 502(a) provides that any proof of claim “is deemed allowed, unless a party in interest ... objects.” Whitney v. Dresser, 200 U.S. 532, 534-35, 26 S.Ct. 316, 317, 50 L.Ed. 584 (1906) (stating proof of claim is sufficient to establish prima facie proof of a valid debt for purposes of distribution of estate assets). Unlike a proof of claim, which must be filed before the bar date, an objection to a proof of claim may be filed at any time. In re Thompson, 965 F.2d 1136, 1147 (1st Cir.1992); In re Kolstad, 928 F.2d 171, 174 (5th Cir.), cert. denied, 502 U.S. 958, 112 S.Ct. 419, 116 L.Ed.2d 439 (1991). The procedure for filing objections to the allowance of claims is established in part by Rule 3007. Rule 3007 provides that an objection shall be in writing and filed with the bankruptcy court, and a copy of the objection with notice of a hearing shall be mailed to the claimant at least" }, { "docid": "5169821", "title": "", "text": "have filed an adversary proceeding. Federal Rule of Bankruptcy Procedure 3007 governs objections to claims and provides: An objection to the allowance of a claim shall be in writing and filed. A copy of the objection with notice of the hearing thereon shall be mailed or otherwise delivered to the claimant, the debtor or debtor in possession and the trustee at least 30 days prior to the hearing. If an objection to a claim is joined with a demand for relief of the kind specified in Rule 7001, it becomes an adversary proceeding. Fed.R.Bankr. P. 3007. The Advisory Committee Note to Bankruptcy Rule 3007 states: “[t]he contested matter initiated by an objection to a claim is governed by Rule 9014, unless a counterclaim by the trustee is joined with the objection to the claim. The filing of a counterclaim ordinarily commences an adversary proceeding subject to the rules in Part VII.” Fed.R.Bankr. P. 3007 Advisory Committee Note (1983), para. 2. Moreover, a leading treatise comments: “[i]t is possible for the trustee to dispute the secured status of a creditor filing a proof of claim by denial and affirmative defense without filing a counterclaim. Unless the creditor can establish its secured status, its claim will be disallowed as a secured claim.” 9 Collier on Bankruptcy, ¶ 7001.05 at 7001-14 (15th ed. 1991). The Trustee has not asserted a counterclaim seeking affirmative relief from Bellwood or Mid American, or made a demand for relief of the kind specified in Bankruptcy Rule 7001. Compare In re Grabill Corp., 121 B.R. 983, 992 (Bankr.N.D.Ill.1990) (adversary proceeding required where trustee sought affirmative relief in a counterclaim). The Court agrees with the decision of In re America’s Shopping Channel, Inc., 110 B.R. 5 (Bankr.S.D.Cal.1990), which held that Bankruptcy Rule 7001 does not apply to the resolution of a claim objection, even when resolution of same involves determination of whether the creditor has received an avoidable preference, as long as the trustee does not include in the objection a demand for recovery of the money or property. Id. at 8. There the court stated: “in cases where" }, { "docid": "3809903", "title": "", "text": "in her brief argues that the corrected IRS claim is as follows: However at trial, no attempt was made to file a claim in the amounts indicated, nor was any evidence of these amounts offered by documents or by live testimony. Because there is no proof in the record to support the reclassification, this argument will not be considered. B. IRS’s Allowed Claim Bankruptcy Rule of Procedure 3007 governs the procedure applicable to objections to claims. This Rule provides as follows: An objection to the allowance of a claim shall be in writing and filed. A copy of the objection with notice of the hearing thereon shall be mailed or otherwise delivered to the claimant, the debtor or debtor in possession and the trustee at least 30 days prior to the hearing. If an objection to a claim is joined with a demand for relief of the kind specified in Rule 7001, it becomes an adversary proceeding. Fed.R.Bankr.P. 3007. The trustee’s action of unilaterally changing the IRS’s claim from secured to long-term priority is ineffective because it was done without suffi cient notice to the IRS to satisfy due process. See Fireman’s Fund Mortgage Corp. v. Hobdy (In re Hobdy), 130 B.R. 318 (Bankr. 9th Cir.1991); United States v. Smith (In re Smith), 142 B.R. 862 (Bankr.E.D.Ark.1992). Since no objection was filed to the IRS’s proof of claim, the IRS’s claim is allowed as filed. Therefore, the IRS is allowed a priority claim of $7,357.00 and a secured claim of $60,428.62. C. Plan’s Treatment of IRS’s Claim An allowed unsecured claim for income taxes not more than three years old is a priority debt. 11 U.S.C. § 507(a)(7). A Chapter 13 plan must “provide for the full ... payment of all claims entitled to priority under section 507 of this title unless the holder of a particular claim agrees to a different treatment of such claim.” 11 U.S.C. § 1322(a)(2) (1988). The debtors’ modified plan provides for payment to the IRS of $16,200.00 as a priority debt and proposes to discharge the balance of the IRS’s claim. The IRS filed" }, { "docid": "23316776", "title": "", "text": "v. Genisco Tech. Corp., 960 F.2d 849, 851 (9th Cir.1992); Center Wholesale, 759 F.2d at 1448 (judgment may be set aside on voidness grounds under Rule 60(b)(4) for a violation of the due process clause of the Fifth Amendment); Cossio, 163 B.R. at 154. It is fundamental that due process of law requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314; 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). Service under Fed.R.Bankr.P. 7004(b) comports with the procedural due process requirements identified by the Supreme Court in Mullane. Leavell v. Karnes, 143 B.R. 212, 217 (S.D.Ill.1990). The procedure for filing objections to the allowance of claims is established in part by Fed.R.Bankr.P. 3007. Rule 3007 provides that an objection shall be in writing and filed with the bankruptcy court, and a copy of the objection with notice of a hearing “shall be mailed or otherwise delivered” to the claimant at least 30 days prior to the hearing. It further provides that if an objection to a claim is joined with a demand for relief of the kind specified in Rule 7001, then it becomes an adversary proceeding. The parties disagree as to the type of notice required under Rule 3007. The United States argued that Fed.R.Bankr.P. 7004 applies, while Debtors argued that under Langenkamp, the United States was not required to be served with a summons or other pleading. We do not find merit in Debtors’ argument and agree that the position of the United States expresses the correct, majority viewpoint on this issue. Fed.R.Bankr.P. 3007 does not provide the manner for service of the objection to a proof of claim. However, the rule’s Advisory Committee Note states: “The contested matter initiated by an objection to a claim is governed by rule 9014-” Fed.R.Bankr.P. 9014, which pertains to contested matters, in turn, makes applicable the service provisions of Fed.R.Bankr.P. 7004. Most authorities agree that claim objections are contested matters. 8 Collieh" }, { "docid": "22864547", "title": "", "text": "IV.DISCUSSION A. Timeliness of PLC’s Objection to the Ashford’s Proof of Claim Section 502(a) provides that any proof of claim “is deemed allowed, unless a party in interest ... objects.” Whitney v. Dresser, 200 U.S. 532, 534-35, 26 S.Ct. 316, 317, 50 L.Ed. 584 (1906) (stating proof of claim is sufficient to establish prima facie proof of a valid debt for purposes of distribution of estate assets). Unlike a proof of claim, which must be filed before the bar date, an objection to a proof of claim may be filed at any time. In re Thompson, 965 F.2d 1136, 1147 (1st Cir.1992); In re Kolstad, 928 F.2d 171, 174 (5th Cir.), cert. denied, 502 U.S. 958, 112 S.Ct. 419, 116 L.Ed.2d 439 (1991). The procedure for filing objections to the allowance of claims is established in part by Rule 3007. Rule 3007 provides that an objection shall be in writing and filed with the bankruptcy court, and a copy of the objection with notice of a hearing shall be mailed to the claimant at least 30 days prior to the hearing. The Ashfords, relying on Local Rule 3007-4 of the United States Bankruptcy Court for the Southern District of California (“Local Rule”), argue in their opening brief that PLC was “prohibited from objecting to a Claim after 30 days[’] from [the] filing of the Claim....” Local Rule 3007-4(b) provides that “[t]he party objecting to a claim shall give no less than thirty (30) days[’] notice of the objection to the claimant, ..., in a format prescribed by Local Form CSD 2015.... ” Local Form CSD 2015 is a form titled “Objection to Claim and Notice Thereof.” PLC responds, correctly, that Local Rule 3007-4(b) requires thirty days’ notice of the objection to the claimant and does not require thirty days to file an objection, as the Ashfords argue. PLC’s objection to the Ashfords’ claim was filed on October 8, 1993. The Ashfords filed their opposition to the objection and request for a hearing on October 15, 1993. The bankruptcy court did not schedule the hearing until November 15, 1993. Because more" } ]

[ { "docid": "23354126", "title": "", "text": "elements in plaintiff’s favor. (1) Existence of a Trade Secret. Secrecy is the basis of plaintiff’s claim. Here evidence tends to prove that many months and much labor were expended by plaintiff in developing a successful carbonyl process, involving complicated chemical and mechanical problems. Defendant contends, however, that this process was merely that disclosed in the Farben patents, and constitutes an infringement of those patents. Obviously, the determinative question in this respect is not the validity of the patents, as the master apparently believed, but whether plaintiff’s alleged secret process, in all its details, is disclosed in the patents or in prior art teachings. If all essential details have been disclosed, the process has become a part of the public domain and can not be claimed by plaintiff as its property. Smith v. Dravo Corp., supra; Carver v. Harr, supra. Although the inference from the evidence that many major elements of plaintiff’s process are shown in the prior art teachings is tenable, the combination of these elements into a complicated production process amounted to a trade secret, Stone v. Goss, supra, if the combination of the interrelated parts represented a valuable contribution arising from plaintiff’s independent efforts. Smith v. Dravo Corp., supra. Here the master has found, and the evidence supports the finding, that the process as a whole was the product of plaintiff’s efforts, differing materially from any methods taught in the prior art. The trial court could not, and this court may not, disturb that finding. Defendant’s second contention in this connection, in keeping with its fifth and sixth affirmative defenses, is that plaintiff conveyed all its rights in its process to Defense Plant, and thus has retained no interest therein which this court may protect. This presents two questions: (1) whether property rights in a trade secret may exist without the claimant’s actual use of the secret information, and (2) what is the effect of the conveyance to Defense Plant, the lease from Defense Plant to Metallurgical and plaintiff’s license agreement of even date to Metallurgical. Though there is respectable authority to the effect that a plaintiff" } ]

[ { "docid": "5033017", "title": "", "text": "of characteristics and components, even if some or all of the characteristics and components are in the public domain, as long as the unified process, design, and operation of the combination constitutes a unique combination that is a trade secret. J.A. 22393. And Neovasc shows no error in the district court’s finding that the combination of these features was not well-known in the mitral valve industry, as there had never been a successful mitral valve before. CardiAQ, 2016 WL 6465411, at *9, *13. Neovasc’s expert admitted that the full combination of features identified in Trade Secret 4 was not disclosed anywhere in the prior art. J.A. 22020-21. Thus, we agree with the district court that “the jury could reasonably find that a TMVI device containing” even some known features was a protectable trade secret. CardiAQ, 2016 WL 6465411, at *13. Finally, Neovasc argues that Trade Secret 4 is not a “unified process or device” and so is not protectable under Massachusetts trade-secret law. Appellants’ Br. 30; see J.A. 22393 (instruction speaking of a “unified process, design, and operation”). But Neovasc did not ask for any further clarification of what is required to be a “unified process.” And it has not identified any such Massachusetts-law requirement that makes the jury’s determination here improper or that precludes a finding of a “unified process” in this case. It cites Peggy Lawton Kitchens, Inc. v. Hogan, 18 Mass.App.Ct. 937, 466 N.E.2d 138 (1984), for the proposition that “Peggy Lawton Kitchens did not have a trade secret in all chocolate chip cookies or in all cookies that used one or more enumerated ingredients,” but only “its unique, holistic process that produces a distinctive cookie.” Appellants’ Br. 39. But that case held that a particular ingredient (nut flour) can be protected if its addition to cookies is original. Peggy Lawton Kitchens, 466 N.E.2d at 140. And it does not preclude a determination, in this quite different context, that each of the devices covered by Trade Secret 4 — each one a mitral valve implant — is anything but a “unified” device. We therefore agree with the" }, { "docid": "11615512", "title": "", "text": "and contact is made with the junction by “staking” the terminal onto a tantalum lead, a method entirely different than Tarzian’s. Tarzian encases by screwing a ceramic body onto a base part and the other terminal and contact is made with the junction by an aluminum plunger which is pressed against the junction by a spring. No silicone grease is used by Audio during the encapsulation while Tarzian injects silicone grease into the interior to cover the junction before final encapsulation. (Opinion, ante, p. 274; Tr. 1139-41; 907-908,2111; Exs. A, JN). 66. The total production time of the Tarzian process is approximately 20 hours while that of the Audio process is approximately 40 hours. (Opinion, ante, p. 274; Tr. 1004, 1146). 67. The testimony and exhibits establish that Audio’s process is dissimilar to and differs materially from the Tarzian process and this conclusion is reinforced by an examination of the patents and publications in which the various steps claimed as secrets, and as set forth in plaintiff’s statement, Exhibit JN, are taught. (Opinion, ante, p. 278). 68. Tarzian did not establish the amount of any damage it alleged to suffer as a result of the employment of the individual defendants by Audio, or as the result of the manufacture and sale of silicon rectifiers by Audio. (Opinion, ante, p. 274; Tr. 1438-1443). 69. Tarzian did not establish the value of a license which it offered the trade for use of its alleged secret process, the evidence establishing that the trade rejected such offers of a license because of the onerous conditions which Tarzian sought to impose on a licensee for what was not a secret process at all. (Opinion, ante, p. 269; Ex. GL-GS; Tr. 1964-1970). Conclusions of Law I. This Court has jurisdiction of the parties and of the subject matter of this action. II. The defendants, acting either alone or in combination, have committed no acts of unfair competition, breach of trust or agreement, or legal wrong against plaintiff in the termination of employment with plaintiff, in the employment of the individual defendants by the defendant Audio Devices," }, { "docid": "11615503", "title": "", "text": "in a particular atomic plane as defined in terms of the Miller Indices, (5) the use of particular metals in the alloying step, (6) the use of a specific type of alloying furnace, (7) the use of a specific chemical etch for treating the silicon, (8) the use of a transfer tray in the process, and (9) the combination of some of these steps. (Tr. 1174-1177, 1208-1210). 47. These selected steps were included in the plaintiff’s statement of 43 items of secret and confidential matter and each of them were known to others in the trade and shown in publications readily available to the trade. (See Findings 44, 45 and 46). 48. Tarzian at the trial, in fact, disclaimed that it had a trade secret or any proprietary rights of any kind in the rectifier as a device, in the particular materials that are used to make a rectifier, the equipment or types of processes and the evidence further establishes that Tarzian did not use anything that was a secret in the art at the time the employee defendants left its employ. (Tr. 18; Opinion, ante, p. 270, note 66). 49. The testimony and exhibits establish a dissimilarity in the process claimed as secret by Tarzian and the process practiced by Audio. (Opinion, ante, p. 278). 50. Audio purchases its silicon primarily from Eagle Pitcher Co., whereas Tarzian’s primary purchases were from duPont Company; Audio primarily purchases n-type silicon for production purposes, whereas Tarzian primarily pur chases p-type silicon; Audio purchases single pulled crystals from Knapic Electraphysics Co. whereas there is no evidence that such purchases were made by Tarzian at the time the individual defendants left Tarzian’s employ. (Opinion, ante, p. 274; Exs. DK, FH; Tr. 1040-1041, 1657-1658, 1663). 51. Tarzian’s production crystal pulling equipment was purchased from Precision Tool and Engineering Co. (which also sold similar equipment to other manufacturers), whereas Audio, although offered such equipment, did not purchase from such source of supply but obtained equipment that utilized a different rotation mechanism, a different seed holder arrangement, a different water cooling system, a different generator and a" }, { "docid": "6550468", "title": "", "text": "secret source of supply open only to Tarzian which he could bind his employees not to disclose to others. 166 F.Supp. at 268 (emphasis in original). In Nickelson v. General Motors Corp., 361 F.2d 196 (7th Cir. 1966), the court denied plaintiff’s claim that he had a secret process which had been wrongfully obtained and utilized by the defendant. The court noted that the process involved did not have the requisite secrecy and further that the plaintiff could not show any novel contribution to the so-called secret. It is, of course, possible that a combination of commonly known elements or steps can be a trade secret, but such must represent a valuable contribution arising from the independent efforts of the one claiming to have devised the new combination . . . The combination must differ materially from other methods taught by the prior art. Trivial advances or differences in formulas or process operations are not protectable as trade secrets. 361 F.2d at 199. The evidence in this case established that the “trade secrets” of Eaton are of the same nature as those considered in the Fair-child case. The Eaton value is a marketed product. The design can be learned by anyone who has purchased a dishwasher in which it is used. The materials and component parts can be learned in the same fashion, or can simply be obtained from the same independent suppliers which furnish the materials and parts to Eaton. Eaton did not present any evidence that its valve is somehow unique and novel in the industry and failed to show any aspect of the valve manufacture operations of AVC which uses information which is not discoverable from the marketed product or patents or which does not constitute information known throughout the industry. Furthermore, while trade secrets and confidential information may be protected by an employer, the general knowledge and skill obtained by an employee during his employment belongs to that employee and can be utilized by him after terminating his employment. It is well settled that an employee, upon leaving his employment, may take with him and utilize" }, { "docid": "2548668", "title": "", "text": "to have occurred, and that of Florida, where its fruits were claimed to have been utilized, afford protection of trade secrets. Recently, in University Computing Co. v. Lykes-Youngstown, 504 F.2d 518 (5th Cir. 1974), this court has articulated legal standards on protection of trade secrets. It is reasonable to suppose that both New Jersey and Florida would apply these standards which were anticipated by the Supreme Court in Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974), in holding that federal patent supremacy does not preempt state trade secret protection. At trial, defendants adopted the strategy of compelling the witness, William Gould, in his oral testimony, to identify one by one the components of appellant’s extrusion line which he regarded as plaintiff’s trade secrets, and thereafter to demonstrate that all were commonly known and used in the art. Judge King dealt seriatim with the claims thus developed in his Findings of Fact, numbered 24 through 55. The thrust of plaintiff’s argument here, and advanced in the court below, as recognized by Finding of Fact No. 48 is that the trade secret for which it claims protection and which it insists was misappropriated by defendants is its entire, integrated line comprised of its unique combination of steps and equipment, rather than the components thereof viewed in isolation. That the whole of a manufacturing process may be greater than the sum of its parts is not the paradox it seems at first blush. However, the court explicitly found that “Defendants extrusion line differs in every material detail from the line of Keystone. ... In short, while there is a similarity in the general overall arrangement and processing, the two lines differ substantially in every material detail.” The court further found that “. . Keystone’s line and process were not a trade secret, the relevant information being known to the art, and furthermore, it was not used by C & P.” [Emphasis added]. In assessing the substantiality of the foregoing ultimate fact findings, due consideration has been given to the personal observation and inspection by the" }, { "docid": "11773711", "title": "", "text": "itself, is in the public domain, but the unified process, design and operation of which, in unique combination, affords a competitive advantage and is a protectable secret.” Id. (quotation omitted). In arriving at its conclusion that the ISR program is not a trade secret as a matter of law, the district court determined that (1) “[variations of the swim, float, swim method are known both inside and outside the children’s aquatic business,” (2) ISR did not take precautions to guard the secrecy of its information “until at least 1996, after hundreds of instructors had been trained and thousands of stu dents taught,” (3) “[pjarents and bystanders were allowed to watch and videotape lessons,” and (4) “a variation on ISR’s methods could be created through a perusal of commercially available child psychology, child health, and swimming instruction books.” Barnett v. Shidler, No. 00-B-731, slip op. at 5 (D.Colo. Jan.4, 2002). Ultimately, the court found that “ISR allowed its program to become part of the public domain before seeking protection ... [and] the Prompts and Procedures, based on principles of behavioral conditioning, was already in use to teach children swim, float, swim throughout the nation” and thus “as a matter of law ... ISR hag no protectable trade secret.” Id. at 5-6. Our review leads us to conclude that the district court improperly looked at components of the ISR program in isolation, rather than as a whole, in determining that ISR does not possess a trade secret. This runs afoul of the analytical approach set forth in Rivendell. 28 F.3d at 1045-46 (concluding that the district court improperly examined the separate elements of an alleged trade secret rather than the combination of elements). ISR’s position is that the ISR program, as a whole, is a trade secret. (See Appellants’ Br. at 15 (“The unified process, design and operation of the ISR Program, in unique combination, affords a competitive advantage and is a protectable secret.”).) In failing to follow our holding in Rivendell— that a trade secret can exist in a combination of characteristics, each of which, considered separately, is in the public" }, { "docid": "7550621", "title": "", "text": "statutory definition of a trade secret, see Conn. Gen.Stat. § 35-51(d), and thus there is question of fact as to whether the information revealed to Pop Warner is one of the types expressly provided for in the statute. See ISC-Bunker Ramo Corp. v. Altech, Inc., 765 F.Supp. 1310, 1322 (N.D.Ill.1990) (software falls “squarely within statutory definition” of trade secret because it is a program). Additionally, the testimony presents a question of fact regarding whether Brown’s descriptions of how the software took the information entered by the user, converted, stored and organized that information is a “formula, ... method, technique, [or] process”. Put simply, there is at least a question of fact as to whether Brown provided Pop Warner with the metaphorical “recipe” for how the software combined the various elements into a marketable product. See Elm City Cheese Co., Inc., v. Federico, 251 Conn. 59, 75, 752 A.2d 1037 (“plaintiffs ability to combine [various] elements into a successful process, like the creation of a recipe from common cooking ingredients is a trade secret entitled to protection”). Likewise, with regard to the second prong of the statutory definition of a trade secret, namely, whether the information has independent economic value, the materials submitted indicate that there is a question of fact as to this element. Specif-ieally, the affidavits submitted by Dream-catcher indicate that both Pop Warner and Dreamcatcher thought that the program filled an existing need in the marketplace. Similarly, Brown’s affidavit indicates that the Pop Warner considered the program sufficiently worthwhile and valuable to schedule a meeting to discuss the use of the program and that Pop Warner subsequently undertook efforts to aid in the marketing and sale of Dreamcatcher’s software. Finally, the submitted materials also indicate that there are material questions of fact regarding whether Dreamcatcher took reasonable steps to ensure the confidentiality of the information. Specifically, Dreamcatcher’s affidavit indicates that it negotiated an extensive confidentiality agreement with Pop Warner before the meeting of February 8, 2000. Consequently, the court concludes that there are questions of material fact as to each of the three prongs of the statutory definition" }, { "docid": "11615477", "title": "", "text": "the employ of another in an open field. The former employer had no patent on the art nor had he discovered any process which was not known or readily discernible by others in the field. Tarzian was entitled to claim his own trade secrets but not “the general secrets of the trade in which he is engaged.” At best, a trade secret protects only during the period when others working in the some field do not, in the ordinary course of their work, make the same discovery. Even in pure science where the problem situation is much more diffuse than in industrial research or development, there are many well authenticated cases of simultaneous discovery by persons or groups who and whose works were completely unknown to one another. A classic example is the discovery of pasteurization by three different persons within the .same year. When it comes to a trade secret in manufacturing there is greater likelihood of simultaneous discovery: There is a common market to be .served by several principals, the desire to compete in the market, and the common problem involved in producing for the specific market, as, for instance, a low price market, and the urgency to meet the problem. Consequently, all who are engaged in the field work not only within what a distinguished anthropologist has called “the configurations” of the same culture but within the limits of a specific problem. This, as in the economic field, may result in parallelisms of action which may be fortuitous because they are inherent in the problem and in its solution, and not the result of conscious copying or imitation. As amply appears from the foregoing discussion, some of the steps involved in the production of silicon rectifiers are common to any method of production simply because everyone producing a rectifier, large or small, expensive or inexpensive, must go through these processes. And there is no selectivity between alternative steps. So the differences between the two processes under discussion here appear as the conscious attempt by former employees not to infringe upon whatever element of selectivity between alternate procedures" }, { "docid": "19811735", "title": "", "text": "specificity and clarity, the information listed necessarily has been set forth as separate items. It will be recognized, however, that some disclosures are in the combinations of the various individual items into working units, and the combinations of such working units in turn into a freeze concentration operating system.” From this Struthers argues that even if some or all of Struthers’ separate itemized information in its answer to interrogatory 119 may have been in the public domain, some combination or combinations of this information may be bona fide trade secrets. In support of this proposition, Struthers cites Callmar, Unfair Competition, Trademarks & Monopolies, Third Edition, Vol. 2, Sec. 52.1 at page 372 which reads: “A trade secret can exist in the unique combination of otherwise known components; although each of its parts, by itself, may be in the public domain, the unified process, design or combination may be the essence of the secret.” While this may be true provided such a combination of commonly known elements or steps represents a valuable contribution differing materially from other methods taught by the prior art, Nickelson v. General Motors Corp., 361 F.2d 196, 199 (C.A. 7, 1966), the fact remains that Struthers has' failed to identify in its answer any such “unique combination.” Its “catch-all” provision is not sufficiently specific to be responsive to interrogatory 119. If Struthers is, in fact, relying for its trade secret allegations on a unique combination of known components disclosed to General Foods, Struthers should be required to specifically describe what particular combination of components it has in mind, how these components are combined, and how they operate in a unique combination. This matter cannot be left to pure speculation and conjecture. A more definite and responsive answer to this question will undoubtedly sharpen the ultimate issues for trial of the unfair competition phases of these cases. Accordingly, General Foods’ motions to compel a more responsive answer to interrogatory 119 will be granted to the extent of ordering Struthers to specifically describe the particular combinations of components it has in mind, the manner in which these components are" }, { "docid": "23545927", "title": "", "text": "simply measuring the parts on a manufactured engine or looking at a picture. MTH also argues that the design drawings are trade secrets even though certain elements of them may have been publicly known. In 3M v. Pribyl, 259 F.3d 587 (7th Cir.2001), the Seventh Circuit held that a plaintiff may prevail in a trade-secrets case without identifying a specific item of information that is not publicly known or readily accessible. There, the plaintiff had a valid trade secret in its operations-and-procedures manual, despite that most of the information it contained was publicly available: In order to be considered a trade secret, a pattern, technique, or process need not reach the level of invention necessary to warrant patent protection. A trade secret can exist in a combination of characteristics and components, each of which, by itself, is in the public domain, but the unified process, design and operation of which, in unique combination, affords a competitive advantage and is a protecta-ble secret. Id. at 595-96. The Seventh Circuit explicitly rejected the argument that Lionel advances before this Court: “[Defendants seem to suggest that if SM cannot point to specific items within its manuals that are not known by the industry, then SM cannot claim a trade secret in the combined product. We disagree.” Id. at 595. Several courts have followed the Seventh Circuit’s decision in SM. See Catalyst & Chem. Servs., Inc. v. Global Ground Support, 350 F.Supp.2d 1, 9 (D.D.C.2004), aff'd 173 Fed.Appx. 825 (Fed Cir.2006) (“[I]t is widely accepted that a trade secret can exist in a combination of characteristics each of which, by itself, is in the public domain.”) (citation omitted); Norbrook Lab. Ltd. v. G.C. Hanford Mfg. Co., 297 F.Supp.2d 463, 483 (N.D.N.Y.2003) (citing 3M, 259 F.3d at 595-96), aff'd 126 Fed.Appx. 507 (2d Cir.2005); PRG-Schultz Intern., Inc. v. Kirix Corp., No. 03-C-1867, 2003 WL 22232771, at *6 (N.D.Ill. Sept.22, 2003) (same). This line of cases is consistent with Arco Industries Corp. v. Chemcast Corp., 633 F.2d 435, 442 (6th Cir.1980), in which this Court held that under Michigan law a new combination of known steps" }, { "docid": "8664282", "title": "", "text": "used in the Polycon process were individually well-known in the art, that would not preclude the existence of a trade secret in the compilation of processes: [A] trade secret can exist in a combination of characteristics and components, each of which, by itself, is in the public domain, but the unified process, design and operation of which, in unique combination, affords a competitive advantage and is a protectable secret. Imperial Chemical Industries, 342 F.2d at 742 (citations omitted). See also Ferroline Corp., 207 F.2d at 921 (“process as a whole ... differed] materially from any methods taught in the prior art”) (emphasis added). As the District Court said: “the value of the secret to Syntex lay in the accumulation and integration of the various basic steps into a commercially feasible product” (emphasis added). Novicky admitted at the trial before the District Court that no single public domain document sets forth all the details contained in Syntex’s batch sheets or FDA master file. B. Novicky’s Access to the Trade Secrets: Novicky admitted at trial that he had access to any documents he wanted relating to the Polycon project. This would include the batch sheets, much of which he developed himself, and the PDA master file. The employment agreement he signed with its non-disclosure and assignment clauses (see supra, Part I) demonstrates that he received the trade secrets in the context of a confidential relationship. C. Novicky’s Disclosure of the Trade Secrets: The District Court cited the testimony of Dr. McGrath (Syntex’s expert) who stated that the crucial portions of the Tsuetaki and Syntex batch sheets were identical and of Mr. Merker (Novicky’s expert) who said (confused as to which set of batch sheets he was holding) that the materials “both look[ed] alike” to him. The court also noted that Dr. McGrath had pointed out errors which appeared in both the Arapahoe and Tsuetaki batch sheets which he labelled “fingerprint errors” because they were mistakes that a chemist was unlikely to repeat, unless he was copying directly from a document. McGrath likewise testified that the specifications and analytical methods contained in the" }, { "docid": "18787562", "title": "", "text": "Ltd. v. National Distillers & Chemical Corp. (2 Cir.1965) 342 F.2d 737, 742, “a trade secret can exist in a combination of characteristics and components each of which, by itself, is in the public domain, but the unified process, design and operation of which in unique combination, affords a competitive advantage and is a protectible secret.” We believe these cases cogently refute appellees’ assertions to the contrary. The second defense advances a supposed concept of “negative know how” in reliance on one sentence from Hurst v. Hughes Tool Co., 634 F.2d 895 (5th Cir.) cert. denied 454 U.S. 829,102 S.Ct. 123, 70 L.Ed.2d 105 (1981). The court there ruled that Hughes Tool Company did not really use the information Hurst provided; “Hurst’s information, while of some benefit, provided only negative, ‘what not to do,’ input to Hughes.” Id. at 899. Both the district court and Smith interpret this to mean that negative know-how cannot constitute a trade secret. The sentence in Hurst, however, has nothing to do with whether the information was a trade secret. It is not found in the section of the opinion dealing with the existence of a trade secret; rather, we were determining whether Hughes Tool Company could be found to have used commercially any secrets Hurst conveyed. Regardless of this misreading, the argument that negative know-how is involved here is unpersuasive. We do not understand how the changes that we have described can be seen as only showing what not to do. Metallurgical’s evidence shows that it encountered many problems with the furnaces Therm-O-Vac delivered. Striving to solve these problems, Metallurgical took several steps to modify the furnaces. Installing unitary heating elements, chill plates, multiple crucibles, and pump filters are all “positive” steps resulting from conclusions on what to do. These changes allegedly turned unuseable furnaces into ones fit for commercial operation. One may say, of course, that these actions result from realizations of what not to do; but so does every human process: the selection of one action at a given moment involves the rejection of every other conceivable one that might have been" }, { "docid": "22571619", "title": "", "text": "their joint action a new and useful result. The case presented is thus fundamentally different from Mandel Bros. v. Wallace, 335 U.S. 291, 69 S.Ct. 73, 93 L.Ed. 12, where all that was done was to use a drug with a cosmetic preparation to accomplish a purpose for which its availability had long been known and recognized. What we have here is a new and useful composition of matter produced after lengthy experimentation, in which the various elements combine to produce a new and useful result. To the presumption that the finding of the District Judge as to validity is correct, a finding based upon lengthy evidence and the testimony of experts. See Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 69 S.Ct. 535, 93 L.Ed. 672, must be added the presumptions of validity arising from the fact that the patent was issued by the Patent Office, from the fact that the patented product entered at once into wide public use and achieved outstanding commercial success, and from the fact that it was copied by an infringer who was one of the largest soap manufacturers of the country and who had been trying in vain to develop a similar product but had been unable to do so until the knowledge of one of the patentees was obtained. 2. The Trade Secrets. The District Judge made the following finding as to misappropriation of trade secrets by Colgate, viz.: “12. That the defendant Colgate-Palmolive Company has wrongfully and unlawfully misappropriated trade secrets of plaintiff by embodying them in pressurized lather shaving compositions as follows: “(a) By combining the trade secret of the formula of the soap solution in the plaintiffs’ product ‘Rise’ with diluted Colgate lather cream to make ‘Rapid Shave No. 1’. “(b) By employing in some containers of ‘Rapid Shave No. 1’ plaintiffs’ trade secret in the heat annealing process for polyethylene siphon tubes. “(c) By combining in a pressurized lather-generating composition a soap solution superfatted with petrolatum, carbowax and excess stearic acid, and embodying said secret combination in its products ‘Rapid Shave No. 2’" }, { "docid": "5033016", "title": "", "text": "does not even argue that any of the six features, or the possible combinations one or more of them with the common device features, is insufficiently specified. CardiAQ could have listed each of the 63 devices separately for the jury; Trade Secret 4 just simplified the presentation to the jury. That grouping, to which Neovasc agreed, introduced no specificity problem. Neovasc also argues that the combination of known elements cannot be a protectable trade secret, Appellants’ Br. 32 (citing Strategic Directions Grp., Inc. v. Bristol-Myers Squibb Co., 293 F.3d 1062 (8th Cir. 2002) (holding that a subset of a publicly available collection of market research questions is not secret)). But Strategic Directions, interpreting Minnesota law, stands for no such broad proposition. Indeed, it acknowledged that some combinations of known elements can be secret and found only that the plaintiff had not shown anything secret about the combination of public survey questions at issue. Strategic Directions, 293 F.3d at 1065. Neovasc did not object to this jury instruction: A trade secret can exist in a combination of characteristics and components, even if some or all of the characteristics and components are in the public domain, as long as the unified process, design, and operation of the combination constitutes a unique combination that is a trade secret. J.A. 22393. And Neovasc shows no error in the district court’s finding that the combination of these features was not well-known in the mitral valve industry, as there had never been a successful mitral valve before. CardiAQ, 2016 WL 6465411, at *9, *13. Neovasc’s expert admitted that the full combination of features identified in Trade Secret 4 was not disclosed anywhere in the prior art. J.A. 22020-21. Thus, we agree with the district court that “the jury could reasonably find that a TMVI device containing” even some known features was a protectable trade secret. CardiAQ, 2016 WL 6465411, at *13. Finally, Neovasc argues that Trade Secret 4 is not a “unified process or device” and so is not protectable under Massachusetts trade-secret law. Appellants’ Br. 30; see J.A. 22393 (instruction speaking of a “unified process," }, { "docid": "11615502", "title": "", "text": "to be taken in the manufacture but the methods to be applied and the choice of materials to be used in effecting the etching, alloying, soldering and encapsulation of the device. (Exs. 130, 135, BY, BZ, Cl, CM, CQ, CS, CT, DD-DZ, EA-EW, EZ, FA-FE, FH, FI, FD-FN, FT, GC, GD, GT-HC, HF-HJ, HL, HN-IB, IE-JN; Opinion, ante, p. 271; Tr. 2015-2099, 1887-1944, 1847-1886, 1533-1543, 2167-2187, 1620-1633). 45. The complete process is so shown in at least five publications readily available to the trade. (Exs. HB, HC, DT, HZ, IA, EZ, Cl; Opinion, ante, p. 271; Tr. 2021-2107). 46. The expert witnesses for the plaintiff selected certain steps of the Tarzian process which they deemed to be of special significance relating to (1) the atmosphere used during the crystal pulling or growing step, (2) the rate of rotation and the pulling speed used during the crystal pulling or growing step, (3) the omission of a step in the treatment of the silicon wafers, (4) the lack of a certain orientation or alignment of the crystal in a particular atomic plane as defined in terms of the Miller Indices, (5) the use of particular metals in the alloying step, (6) the use of a specific type of alloying furnace, (7) the use of a specific chemical etch for treating the silicon, (8) the use of a transfer tray in the process, and (9) the combination of some of these steps. (Tr. 1174-1177, 1208-1210). 47. These selected steps were included in the plaintiff’s statement of 43 items of secret and confidential matter and each of them were known to others in the trade and shown in publications readily available to the trade. (See Findings 44, 45 and 46). 48. Tarzian at the trial, in fact, disclaimed that it had a trade secret or any proprietary rights of any kind in the rectifier as a device, in the particular materials that are used to make a rectifier, the equipment or types of processes and the evidence further establishes that Tarzian did not use anything that was a secret in the art at the" }, { "docid": "6550467", "title": "", "text": "[The alleged trade secrets] were also either revealed in the marketed product; fully disclosed by issued patents; generally known to those skilled in the industry or trade; or consisted of information easily acquired by persons in the industry from patents, literature or known processes. * * * 366 F.Supp. at 1186. Similarly, in Sarkes Tarzian, Inc., v. Audio Devices, Inc., 166 F.Supp. 250 (S.D.Cal.1958), aff’d per curiam, 283 F.2d 695 (9th Cir. 1960), cert. den., 365 U.S. 869, 81 S.Ct. 903, 5 L.Ed.2d 859 (1961), the court refused to enjoin the operation of a competing business by ex-employees of the plaintiff. The court found that the use of the same equipment, purchased from the same suppliers as used by the plaintiff, was not improper: But the evidence is overwhelming that these were not machines built to specifications, but machines for pulling crystals * * * which are advertised in catalogues by nationally known firms who sell them either from stock or modify them to suit the particular needs of a manufacturer. They were not a secret source of supply open only to Tarzian which he could bind his employees not to disclose to others. 166 F.Supp. at 268 (emphasis in original). In Nickelson v. General Motors Corp., 361 F.2d 196 (7th Cir. 1966), the court denied plaintiff’s claim that he had a secret process which had been wrongfully obtained and utilized by the defendant. The court noted that the process involved did not have the requisite secrecy and further that the plaintiff could not show any novel contribution to the so-called secret. It is, of course, possible that a combination of commonly known elements or steps can be a trade secret, but such must represent a valuable contribution arising from the independent efforts of the one claiming to have devised the new combination . . . The combination must differ materially from other methods taught by the prior art. Trivial advances or differences in formulas or process operations are not protectable as trade secrets. 361 F.2d at 199. The evidence in this case established that the “trade secrets” of Eaton" }, { "docid": "18775162", "title": "", "text": "765 ILCS 1065 et seq., prohibits misappropriation of trade secrets. The Act defines a trade secret as follows: “Trade secret” means information, including but not limited to, technical or nontechnical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, that: (1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. 765 ILCS 1065/2(d). Defendants raise several arguments in support of their contention that Web’s Trade Secrets Act claim must fail. They first assert that the stepped insert is incapable of being a trade secret because it was the result of publicly available knowledge. It is well established that a product or service which is “within the realm of general skills and knowledge” in the industry can not a trade secret. Service Centers of Chicago, Inc. v. Minogue, 180 Ill.App.3d 447, 129 Ill.Dec. 367, 372, 535 N.E.2d 1132, 1137 (1989). As Web acknowledges, stepped inserts have been “used for years” in the printing industry. Indeed, such inserts had previously been used in annual reports and envelope staffers. Web asserts, however, that the stepped insert it created for Gateway was the first which could be run inside a “perfect” bound national computer magazine. This fact alone, however, does not make the Web stepped insert a trade secret; “[sjimply being the first or only one to use certain information does not in and of itself transform otherwise general knowledge into a trade secret.” Id. Instead, Web must demonstrate that the leap from the previously used stepped inserts to the stepped insert developed by Web can be fairly characterized as “not generally known or easily duplicated by the industry.” Computer Care v. Service Sys. Enters., Inc., 982 F.2d 1063, 1075 (7th Cir.1992). As the Seventh Circuit noted in Computer Care, a primary factor in such an analysis is “ ‘the amount of time," }, { "docid": "17028092", "title": "", "text": "accomplish this goal, it formed a collagen wound dressing team which included Khos-rowshahi. As part of its effort to develop collagen wound care products, Integra wanted to perform controlled studies on medical patients, using both its product and plaintiffs’ product. Khosrowshahi agreed to provide plaintiffs’ products and arranged to purchase them from plaintiffs’ distributors. By January of 1998, however, the Integra project was dead. Integra never introduced into the market any collagen product that competed with plaintiffs’ products. 1. Manufacturing Process Plaintiffs assert that the process which they use to manufacture their products — including the ingredients, equipment, processing, and other elements — is a trade secret. A trade secret can exist in a combination of components, each of which, by itself, might be in the public domain. A knowledge of the best combination of processes or systems of combination of elements may amount to a trade secret. Mann v. Tatge Chem. Co., 201 Kan. 326, 334, 440 P.2d 640, 647 (1968). Some people who use plaintiffs’ products consider them to be extremely effective and prefer plaintiffs’ products over similar ones. Testimony of Cindy Ahearn, (Doc. # 677) at 61-63; Testimony of Tamara Fishman (Doc. # 677) at 75-80. Richard Walsh, who distributed plaintiffs’ products, considered them to be the most effective wound care product. Deposition of Richard Walsh at 43-45, 76, 77, 101, 132. Plaintiffs’ manufacturing process yields a product which consumers purchase because they believe that it out-performs other wound care products in the market. Information about the manufacturing process therefore has economic value and the fact that it is not generally known enables plaintiffs to produce products which their customers find to be superior to competing products. See K.S.A. § 60-3320(4). Further, plaintiffs have taken reasonable steps to prevent others from learning the entire process. For ‘instance, a key element in plaintiffs’ production process is Chemical Z, which plaintiffs use as a nucleating agent for collagen. The formula for Chemical Z is heavily protected and only a select few of plaintiffs’ employees know what it is. The Court therefore concludes that plaintiffs entire manufacturing process is a" }, { "docid": "8664281", "title": "", "text": "was secret and subject to that duty. Dr. Courtland Spicer, a supervisor on the project, told his employees that the information in the batch sheets was valuable and confidential. Syntex never published the batch sheets or the analytical methods [contained in the FDA master file]. We agree with the District Court that manufacturing process details which are given such confidential treatment are entitled to protection as trade secrets. See Affiliated Hospital Products, Inc. v. Baldwin, 57 Ill.App.3d 800, 15 Ill.Dec. 528, 530, 373 N.E.2d 1000, 1002, 1006, 202 USPQ 220, 221-22, 225 (1978). Novicky argues, nonetheless, that the Polycon process is not a trade secret. He asserts that the “batch sheets ... are nothing more than a compilation of reactions, each of which is well-known to the art and documented in the literature.” Novicky fails to acknowledge that it is this very “compilation of reactions” — along with information about the ingredients and procedures used in them — that is the trade secret. Even if Novicky were correct in his assertion that all the reactions used in the Polycon process were individually well-known in the art, that would not preclude the existence of a trade secret in the compilation of processes: [A] trade secret can exist in a combination of characteristics and components, each of which, by itself, is in the public domain, but the unified process, design and operation of which, in unique combination, affords a competitive advantage and is a protectable secret. Imperial Chemical Industries, 342 F.2d at 742 (citations omitted). See also Ferroline Corp., 207 F.2d at 921 (“process as a whole ... differed] materially from any methods taught in the prior art”) (emphasis added). As the District Court said: “the value of the secret to Syntex lay in the accumulation and integration of the various basic steps into a commercially feasible product” (emphasis added). Novicky admitted at the trial before the District Court that no single public domain document sets forth all the details contained in Syntex’s batch sheets or FDA master file. B. Novicky’s Access to the Trade Secrets: Novicky admitted at trial that he" }, { "docid": "19811734", "title": "", "text": "one form or another in other litigation and to that extent may appear somewhat old and shopworn to General Foods, the present answer to interrogatory 119 is the first separate itemization which has been filed under oath in this proceeding setting out what Struthers claims to be its bona fide trade secrets. Furthermore, the Court is unable to fully understand the basis for the United States Tariff Commission’s order which dismissed Struthers’ complaint before the Commission and for that reason attributes to it no binding effect upon this Court. Therefore, General Foods’ motion to compel a further answer to interrogate ry 119 will be denied in so far as it seeks additional information or itemization of the separate trade secrets allegedly disclosed by Struthers to General Foods. The Court concludes Struthers’ answer is responsive in specifying the separate items of information alleged to be trade secrets. However, in addition to itemizing the separate items of alleged trade secrets, Struthers’ answer to interrogatory 119 also contains a “catch-all” provision which reads as follows: “For purposes of specificity and clarity, the information listed necessarily has been set forth as separate items. It will be recognized, however, that some disclosures are in the combinations of the various individual items into working units, and the combinations of such working units in turn into a freeze concentration operating system.” From this Struthers argues that even if some or all of Struthers’ separate itemized information in its answer to interrogatory 119 may have been in the public domain, some combination or combinations of this information may be bona fide trade secrets. In support of this proposition, Struthers cites Callmar, Unfair Competition, Trademarks & Monopolies, Third Edition, Vol. 2, Sec. 52.1 at page 372 which reads: “A trade secret can exist in the unique combination of otherwise known components; although each of its parts, by itself, may be in the public domain, the unified process, design or combination may be the essence of the secret.” While this may be true provided such a combination of commonly known elements or steps represents a valuable contribution differing materially from" } ]

[ { "docid": "6746652", "title": "", "text": "failure of the plaintiff to make any demand pursuant to the arbitration provision of the contract within the period of time specified therein for such demand. It further pleads affirmative claims for relief against the plaintiff, totalling $49,233.13. Specifically, then, the plaintiff moves, pursuant to Rule 12(f), to strike the first affirmative defense as insufficient in law and plaintiff also moves to dismiss the affirmative claim urging that a federal question is not presented and the plaintiff and third-party defendants are all citizens of New York and there is no diversity jurisdiction. We consider first plaintiff’s motion to strike the affirmative claim. Rule 14 of the Federal Rules of Civil Procedure, 28 U.S.C.A. provides that, “The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff.” However, it must be read with Rule 82, which provides that, “These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein.” The right of a third-party defendant to assert a claim against the plaintiff must be supported by independent jurisdictional grounds, (Shverha v. Maryland Gas Co., D.C., 110 F.Supp. 173). The third-party defendants attempt to distinguish this case by insisting that the case at bar is concerned with a compulsory counterclaim. The Shverha case, supra, did deal with a compulsory counterclaim under Rule 14. The very wording of Rule 14 excludes permissive counterclaims as defined by Rule 13 (b). The third-party defendants further argue that a failure to plead their compulsory counterclaims would bar them from ever raising them again. This argument is without merit in the present circumstances. Since this Court has no jurisdiction over the claims which the third-party defendants assert against the plaintiff, we may not adjudicate that matter in any manner to the prejudice of any party. A contrary ruling, too, would provide the third-party defendants with a right which they could not enjoy in a New York court, where a' third-party defendant may not counterclaim" } ]

[ { "docid": "22828218", "title": "", "text": "in disagreement on the requirement of independent jurisdictional grounds to support the third-party defendant’s claim against the plaintiff. Since it is analogous to a compulsory counterclaim under Rule 13(a), the claim might be considered ancillary to the main action. However the overwhelming weight of authority, which requires independent jurisdiction for a claim asserted by the plaintiff against the third party, militates against a contrary rule when the third party takes the initiative to exercise a corresponding right in claiming against the plaintiff. Admittedly, there is, in such instances, little chance of a collusive attempt to circumvent diversity limitations; only by the most remote coincidence could a third party find a friendly defendant to implead him, ostensibly on a claim of recovery over, but in reality for the purpose of allowing the third party to assert a claim against the plaintiff. In addition, it may be argued that the plaintiff, by bringing his action has submitted to all claims arising out of the “transaction or occurrence” that is the subject matter of his claim against the defendant. Similar contentions could be made, however, in favor of allowing the plaintiff to claim against the third party regardless of the presence of independent grounds of jurisdiction: first, the court may always exercise its discretionary powers to deny impleader when the third-party complaint shows no genuine grounds for recovery over; secondly, the very purpose of Rule 14 is to settle related matters in one action if it can be done without extending federal jurisdiction. As a result, a rule that independent grounds of jurisdiction need not exist in cases where the third party seeks to assert a claim against the plaintiff would require a reversal of existing authority in the converse situation. (Footnotes omitted.) . The concept of ancillary jurisdiction is not a recent invention, but lias been a part of our law for at least a century, or more. Generally, claims to property already subject to the jurisdiction of a federal court; bills in equity to protect and effectuate the judgments and decrees of federal courts; as well as proceedings adjunctive to the" }, { "docid": "15231448", "title": "", "text": "to the main suit for all purposes, and not only as between the third-party plaintiff and the third-party defendant.” Holtzoff, Entry of Additional Parties in a Civil Action, 31 F.R.D. 101, 110 (1963). The same view is espoused by Professor George B. Fraser, Ancillary Jurisdiction and the Joinder of Claims in the Federal Courts, 33 F.R.D. 27, 41 (1964). Professor Moore further states that other contentions may be made in favor of allowing the plaintiff to assert claims against the third-party defendant regardless of the presence of independent grounds of jurisdiction. “ * * * first, the court may always exercise its discretionary powers to deny impleader when the third-party complaint shows no genuine grounds for recovery over; secondly, the very purpose of Rule 14 is to settle related matters in one action if it can be done without extending federal jurisdiction. As a result, a rule that independent grounds of jurisdiction need not exist in eases where the third party seeks to assert a claim against the plaintiff would require a reversal of existing authority in the converse situation.” 3 Moore, Federal Practice, Para. 14.27 [2], p. 726. Recently, this court held that independent grounds of jurisdiction need not exist in allowing a third-party defendant to assert a claim against the plaintiff. Union Bank & Trust Co. v. St. Paul Fire and Marine Ins. Co., 38 F.R.D. 486 (D.C.1965). As to the fear of collusion, it may be argued that the fact that there may be collusion between the original parties in some cases should not prevent plaintiffs from asserting claims against third-party defendants in all cases. The courts should only dismiss the claim where collusion actually exists. As a matter of policy and logic, it appears reasonable to regard a claim asserted by a plaintiff against a third-party defendant as ancillary to the original action. This court in United States for Use and Benefit of Claussen-Olson-Benner, Inc. v. Doolittle Construction, Inc., 195 F.Supp. 537 (D.Neb.1961) allowed a plaintiff’s claim against the subcontractor which was, in effect, a claim by a plaintiff against a third-party defendant. Although other considerations" }, { "docid": "22828216", "title": "", "text": "F.2d at 973-974; Childress v. Cook, supra, at 245 F.2d 803; Fraser, “Ancillary Jurisdiction and the Joinder of Claims in the Federal Courts”, supra, n. 4, at 28 of 33 F.R.D. The order of the District Court overruling Revere’s motion to dismiss Fuller’s Rule 14(a) counterclaim is affirmed and this case is remanded for further proceedings. Affirmed and remanded. . Rule 14(a) provides in part: The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. . The Industrial Development Board also commenced an action against Fuller in the Northern District of Alabama (O.A. 69-277) seeking $438,050 and other declaratory relief. Revere brought an action against Fuller in the Circuit Court, Jackson County, Alabama, (Case No. 1086) apparently making allegations identical to those made here, and seeking $2,045,000 and other declaratory relief. . Union Bank & Trust Co. v. St. Paul Fire and Marine Ins. Co., D.Nebr., 1965, 38 F.R.D. 486; Heintz & Co. v. Provident Tradesmens Bank and Trust Co., E.D. Pa., 1962, 30 F.R.D. 171; James King & Son, Inc., v. Indemnity Insurance Company, S.D.N.Y., 1959, 178 F.Supp. 146; Shverha v. Maryland Cas. Co., E.D.Pa., 1953, 110 F.Supp. 173; Bernstein v. N. V. Nederlandsche-Amerikaansche, etc., S.D.N.Y., 1949, 9 F.R.D. 557; Morris Wheeler & Co. v. Rust Engineering Co., D.Del., 1945, 4 F.R.D. 307 (dicta). . E. g., 1A W. Barron & A. Holtzoff, Federal Practice and Procedure (Wright rev., 1960) § 424 and 1968 Supp., p. 133; 3 J. Moore, Federal Practice, ¶ 14.27 [2] (1968) ; C. Wright, Handbook of the Law of the Federal Courts, § 76 (2nd ed., 1970) ; Fraser, “Ancillary Jurisdiction and the Joinder of Claims in Federal Courts”, 33 F.R.D. 27 (1964) ; Holtzoff, “Entry of Additional Parties in a Civil Action”, 31 F.R.D. 101 (1963) ; Note, “Diversity Requirements in Multi-party Litigation”, 58 Columb.L.Rev. 548 (1958) ; Note, “The Ancillary Concept and the Federal Rules”, 64 Harv.L.Rev. 968 (1951). . 3 Moore, supra, n. 4, at 724-726 states: The cases are" }, { "docid": "22828200", "title": "", "text": "ease, which was decided prior to the 1946 amendment to Rule 14 allowing the third-party defendant to assert a claim directly against the original plaintiff, held that such a claim was not cognizable as a Rule 13 counterclaim because the plaintiff had not asserted a claim against the third-party defendant and thus the plaintiff and the third-party defendant were not “opposing parties” as required by Rule 13. The court went on to say, in what seems to be dicta, that the third-party’s claim was independent of the main claim and thus required an independent ground of federal jurisdiction. In Shverha v. Maryland Casualty Co., supra, n. 3, the court followed the lead of Professor Moore and concluded that the third-party defendant must have an independent ground of federal jurisdiction to assert a Rule 14(a) counterclaim against the original plaintiff since the original plaintiff must have an independent ground of federal jurisdiction to assert a direct claim against the third-party defendant. James King & Sons, Inc. v. Indemnity Insurance Company, supra, n. 3, follows Shverha and also relies on Rule 82, F.R. C.P., which provides that “[t]hese rules shall not be construed to extend or limit the jurisdiction of the United States district courts * * * The first case to hold a Rule 14(a) counterclaim within the ancillary jurisdiction of the federal courts was Bernstein v. N. V. Nederlandsche-Amerikaansche, etc., supra, n. 3, which based its holding on the fact that the claim was one “arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff”. Similarly, Heintz & Co. v. Provident Tradesmens Bank and Trust Co., supra, n. 3, held that since a Rule 14(a) counterclaim must arise out of the same transaction or occurrence which gives rise to the main claim, it is within the ancillary jurisdiction of the court, stating: It is a tenet of long settled antiquity that once a federal court has validly acquired jurisdiction, its jurisdiction extends to all matters “ancillary” to the main cause of action, even though the ancillary matters lack federal jurisdictional" }, { "docid": "2250236", "title": "", "text": "Rule 13, F.R.Civ.P., governing counterclaims. The claim is that a third party action under Rule 14 is permissive in nature and therefore, as under the permissive counterclaim rule, an additional party may not be brought in under the ancillary jurisdiction of the court. The court had jurisdiction over Peterson whether it be styled a third party defendant or an additional party under the counterclaim rule. This is for the reason that under Rule 14, the court has ancillary jurisdiction over a third party defendant even absent diversity of citizenship. Southern Milling Company v. United States, 5 Cir., 1959, 270 F.2d 80; Agrashell, Inc. v. Bernard Sirotta Company, 2 Cir., 1965, 344 F.2d 583; Barron & Holtzoff (Wright Ed., 1960) § 424, pp. 650-651; 3 Moore, Federal Practice, par. 14.26, p. 707; and Fraser, Ancillary Jurisdiction and the Joinder of Claims in the Federal Courts, 33 F.R.D. 27, 38-39 (1964). The district court treated Peterson as an additional party under the counterclaim rule. This followed the premise of the Applewhites’ counterclaim and, as such, the court also had jurisdiction. This is because the counterclaim was compulsory. See Rule 13(a), supra. The counterclaim arises directly out of the sales contract and note and meets even the strict definition of a compulsory counterclaim such as where the Supreme Court said “So close is the connection between the ease sought to be stated in the bill and that set up in the counterclaim, that it only needs the failure of the former to establish a foundation for the latter * * * Moore v. New York Cotton Exchange, 1926, 270 U.S. 593, 610, 46 S.Ct. 367, 371, 70 L.Ed. 750. It is settled that where as here the counterclaim is compulsory against Smith, no independent jurisdictional ground need exist where an additional party such as Peterson is brought into the case by the counterclaimant. See Dery v. Wyer, 2 Cir., 1959, 265 F.2d 804; United Artists Corporation v. Masterpiece Productions, 2 Cir., 1955, 221 F.2d 213; Lesnik v. Public Industrials Corporation, 2 Cir., 1944, 144 F.2d 968; Barron & Holtzoff (Wright Ed., 1960) §" }, { "docid": "18258120", "title": "", "text": "solely and entirely on a conclusion of Professor Moore and the King case relied solely on Shverha, without independent rationalization. This was the statement from Moore (3 Moore, “Federal Practice”, § 14.28, p. 503): “ * * * Since, as we have seen, the plaintiff may avail himself of this procedural right [the right to assert by amendment a claim against third party defendant] only where there is an independent jurisdictional ground to support his claim against the third party, it must follow that if the third party takes the initiative to assert a claim against the plaintiff there must be independent jurisdictional grounds in support thereof. * * * ” We are constrained, with the utmost respect, to disagree with Professor Moose and with the two cases which followed his conclusion. It is a tenet of long settled antiquity that once a federal court has validly acquired jurisdiction, its jurisdiction extends to all matters “ancillary” to the main cause of action, even though the ancillary matters lack federal jurisdictional requisites: Lesnik v. Public Industrials Corporation, 144 F.2d 968, 973-974 (C.C.A.2, 1944). This was true even before the Rules of Civil Procedure in equity practice, where Equity Rule 30 provided for the assertion of a counterclaim if it arose out of the same transaction. Moore v. New York Cotton Exchange, et al., 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926). Similarly, since the adoption of the Rules, ancillary actions have been retained in the absence of independent federal jurisdiction in the form of compulsory counterclaims under Rule 13(a) [Great Lakes Rubber Corporation v. Herbert Cooper, 286 F.2d 631 (C.A.3, 1961)]; cross-claims under Rule 13(g) [Childress v. Cook, 245 F.2d 798, 805 (C.A.5, 1957); Collier v. Harvey et al., 179 F.2d 664, 667 (C.A.10, 1949)] ; and claims by intervenors under Rule 24(b) [United States, to Use and for Benefit of Foster Wheeler Corporation v. American Surety Co. of New York, 142 F.2d 726 (C.C.A.2, 1944); cf. Carter Oil Co. v. Wood, et al., 30 F.Supp. 875 (E.D.Ill., 1940)]. Hence, if the third party defendant’s claim here is “ancillary”," }, { "docid": "3162313", "title": "", "text": "(9th Cir.1965); C. Wright, Federal Courts § 76, at 517 (4th ed. 1983); 3 Moore’s Federal Practice ¶ 14.27[2], at 14-118 (1984); The Supreme Court, 1977 Term, 92 Harv.L.Rev. 5, 247 (1978). Such claims are unlikely to be collusively manufactured so as to circumvent the rule of complete diversity. [Ojnly by the most remote coincidence could a third party find a friendly defendant to implead him, ostensibly on a claim of recovery over, but in reality for the purpose of allowing the third party to assert a claim against the plaintiff. 3 Moore’s Federal Practice at 14-118. It is both efficient and fair to allow Philmont to answer Finkle’s suit in one action in federal court with its own claims that arise from the same transaction or occurrence. We also hold that if, as here, a third-party defendant asserts claims under Rule 14(a) against plaintiff, ancillary jurisdiction extends to support plaintiff’s “compulsory counterclaim” under Fed. R. Civ. P. 13(a). Such claims are induced by the third-party’s choice to assert its claims against plaintiff. Generally, no independent basis of federal jurisdiction is required for compulsory counterclaims. See 3 Moore’s Federal Practice ¶ 13.15[1], at 13-280-81; Moore v. New York Cotton Exchange, 270 U.S. 593, 609-10, 46 S.Ct. 367, 370-71, 70 L.Ed. 750 (1926) (sustaining ancillary jurisdiction over a counterclaim that arose out of same transaction as the plaintiff’s federal claim). This principle applies here as well. As the Seventh Circuit recently reasoned in Evra Corp. v. Swiss Bank Corp., 673 F.2d 951, 960 (7th Cir.), cert. denied, 459 U.S. 1017, 103 S.Ct. 377, 74 L.Ed.2d 511 (1982), the third-party defendant “may not invoke the jurisdiction of the federal courts-in order to bring a state-law claim against a nondiverse party and then use the lack of diversity to force that party to bring its identical claim ... in a state court.” See also 3 Moore’s Federal Practice ¶ 14.27[2], at 14-119; L & E Co. v. United States, 351 F.2d at 882. This result is consistent with Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d" }, { "docid": "22828202", "title": "", "text": "requisites. (Citing Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926), and Lesnik v. Public Industrials Corporation, 2 Cir., 1944, 144 F.2d 968, 973-974.) 30 F.R.D. at 173. Further, the court noted that compulsory counterclaims under Rule 13(a), crossclaims under Rule 13(g), and claims by intervention of right under Rule 24(b) are ancillary since they meet the “same transaction and occurrence” test and that it could “see no sound reason to depart from the traditionally accepted standard of ‘ancillary’ in respect to claims under Rule 14”. 30 F.R.D. at 173-174. The most recent decision on the question, Union Bank & Trust Co. v. St. Paul Fire & Marine Ins. Co., supra, n. 3, relied on Heintz and Bernstein, as well as Fraser, “Ancillary Jurisdiction and the Joinder of Claims in Federal Courts”, supra, n. 4,. 33 F.R.D. at 41, and Holtzoff, “Entry of Additional Parties in a Civil Action”, supra, n. 4, 31 F.R.D. at 110 in holding that a Rule 14(a) counterclaim is ancillary. The court in Union Bank seemed to be particularly impressed with the thought that “[i]f a defendant’s claim against a third-party may be factually unrelated to the main claim and still be within the court’s ancillary jurisdiction, then certainly a third-party defendant’s claim against the plaintiff, which necessarily is closely related to the main claim, should also be cognizable”. 38 F.R.D. at 489. The theoretical basis which underlies the modern doctrine of ancillary jurisdiction appears to be fairly well settled. In holding that a defendant’s claim impleading a third party within the ancillary jurisdiction of the court, the Second Circuit, in Dery v. Wyer, 1959, 265 F.2d 804, 807, said: To understand the basic theory of Rule 14 it is necessary to remember that in the Federal Rules of Civil Procedure the word “claim” has a somewhat broader connotation than that which prior to the Rules pertained to a “cause of action.” It is used to denote the aggregate of operative facts which give rise to a right enforceable in the courts.” Original Ballet Russe v. Ballet Theatre," }, { "docid": "22055475", "title": "", "text": "listed in 3 Moore’s Federal Practice, ¶ 14.26 n. 6 and 1958 Supplement, page 496. See also Foster v. Brown, Chesnut, Judge, D.C.D.Md., 22 F.R.D. 471. In a number of appellate court opinions there is discussion which clearly supports that conclusion. Lesnik v. Public Industrial Corp., 2 Cir., 144 F. 2d 968; Walmac Co. v. Isaacs, 1 Cir., 220 F.2d 108; United States v. Acord, 10 Cir., 209 F.2d 709, certiorari denied 347 U.S. 975, 74 S.Ct. 766, 98 L.Ed. 1115; Sheppard v. Atlantic States Gas Co., 3 Cir., 167 F.2d 841; Williams v. Keyes, 5 Cir., 125 F.2d 208, certiorari denied 316 U.S. 699, 62 S.Ct. 1297, 86 L.Ed. 1768. Cf. American Fidelity & Casualty Co. v. Owensboro Milling Co., supra. In Bernstein v. N. V. Nederlandsche-Amerikaansche, 2 Cir., 173 F.2d 71, this court recognized the presence of ancillary jurisdiction over a third-party claim thus importing that no independent ground of jurisdiction was required, although, as it happened, an independent ground, diversity, was there present. Our conclusion as to the ancillary character of a third-party claim under Rule 14 is fortified by cases in the cognate field of compulsory counterclaims under Rule 13. This court is committed to the majority rule that such a counterclaim — even one which impleads a new party — may rest on ancillary jurisdiction without need for an independent ground of federal jurisdiction. United Artists Corp. v. Masterpiece Productions, Inc., 2 Cir., 221 F.2d 213; Lesnik v. Public Industrial Corp., 2 Cir., 144 F.2d 968, 975. See Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750; 3 Moore’s Federal Practice, 13.15. A rüle of procedure, of course, however convenient and salutary it may be, is without efficacy to extend the jurisdiction of a court. See Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148; Fed.Rules Civ.Proc., Rule 82. But Rule 14 does not extend jurisdiction. It merely sanctions an impleader procedure which rests upon the broad conception of a claim as comprising a set of facts giving rise to rights flowing both to and from" }, { "docid": "22828201", "title": "", "text": "also relies on Rule 82, F.R. C.P., which provides that “[t]hese rules shall not be construed to extend or limit the jurisdiction of the United States district courts * * * The first case to hold a Rule 14(a) counterclaim within the ancillary jurisdiction of the federal courts was Bernstein v. N. V. Nederlandsche-Amerikaansche, etc., supra, n. 3, which based its holding on the fact that the claim was one “arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff”. Similarly, Heintz & Co. v. Provident Tradesmens Bank and Trust Co., supra, n. 3, held that since a Rule 14(a) counterclaim must arise out of the same transaction or occurrence which gives rise to the main claim, it is within the ancillary jurisdiction of the court, stating: It is a tenet of long settled antiquity that once a federal court has validly acquired jurisdiction, its jurisdiction extends to all matters “ancillary” to the main cause of action, even though the ancillary matters lack federal jurisdictional requisites. (Citing Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926), and Lesnik v. Public Industrials Corporation, 2 Cir., 1944, 144 F.2d 968, 973-974.) 30 F.R.D. at 173. Further, the court noted that compulsory counterclaims under Rule 13(a), crossclaims under Rule 13(g), and claims by intervention of right under Rule 24(b) are ancillary since they meet the “same transaction and occurrence” test and that it could “see no sound reason to depart from the traditionally accepted standard of ‘ancillary’ in respect to claims under Rule 14”. 30 F.R.D. at 173-174. The most recent decision on the question, Union Bank & Trust Co. v. St. Paul Fire & Marine Ins. Co., supra, n. 3, relied on Heintz and Bernstein, as well as Fraser, “Ancillary Jurisdiction and the Joinder of Claims in Federal Courts”, supra, n. 4,. 33 F.R.D. at 41, and Holtzoff, “Entry of Additional Parties in a Civil Action”, supra, n. 4, 31 F.R.D. at 110 in holding that a Rule 14(a) counterclaim is ancillary. The court in" }, { "docid": "18257629", "title": "", "text": "the third party defendants liable to it for all or any part of a judgment obtained by plaintiff on the claims asserted in the complaint. As stated in 3 Moore, Federal Practice, pp. 418, 419, to invoke Rule 14(a) “* * * there must be an attempt to pass on to the third party all or part of the liability asserted against the defendant.” No such attempt is made here. (2) Rule 13(h) F.R.C.P. provides: “Additional Parties May Be Brought in. When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants as provided in these rules, if jurisdiction of them can be obtained and their joinder will not deprive the court of jurisdiction of the action.” The presence of the third party defendants is not required for the granting of complete relief on the counterclaim. In that pleading defendant seeks relief on the grounds that plaintiff is liable for the acts of the third party defendants as its agents or as co-conspirators. It is not necessary to join principal and agents nor is it necessary to join all of the conspirators in order to secure complete relief. Conspirators are jointly and severally liable and all may be joined or an action may be brought against only one. 11 Am.Jur. 584, 585. Moreover, the addition of the third party defendants would deprive this Court of jurisdiction. Defendant’s counterclaim, which does not arise out of the transaction or occurrence which is the subject matter of plaintiff’s claim, is permissive, Rule 13(b), and requires independent jurisdictional grounds to support it. Defendant and the third party defendants are all residents of Ohio and plaintiff is a citizen of Illinois. Manifestly, the presence of such third parties would destroy diversity jurisdiction. There is also an absence of diversity on the cross-claim. Defendant and third party defendants, aligned on opposite sides of the controversy, are all citizens of Ohio. If a counterclaim is compulsory it is ancillary" }, { "docid": "18258118", "title": "", "text": "come, then, to the question: are independent grounds of federal jurisdiction necessary to support a claim for relief by a third party defendant against a plaintiff under Rule 14 ? Before the amendments to the Rules in 1946, there was no provision in Rule 14 for the assertion of a claim against the plaintiff by a third party defendant. Such a claim could be asserted, if at all, only under the counterclaim provisions of Rule 13: Atlantic Coast Line R. Co. v. United States Fidelity & Guaranty Co., 52 F.Supp. 177, 187 (M.D.Ga., 1943). But Rule 13 provided only for a counterclaim against an “opposing party.” For a variety of reasons, the courts have con sistently held that a plaintiff may not amend to state a claim against a third party defendant absent independent federal jurisdiction. Hence, where plaintiff either did not or could not amend, the plaintiff and the third party defendant were not “opposing parties”. Under such circumstances, the claim of the third party defendant was without the purview of Rule 13 and could not stand: Morris, Wheeler & Co., Inc. v. Rust Engineering Co., 4 F.R.D. 307 (Del., 1945). The Advisory Committee Notes on the 1946 Amendments state (see 28 U.S.C.A. ff. Rule 14): “ * * * A new sentence has also been inserted giving the third-party defendant the right to assert directly against the original plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the' third-party plaintiff. This permits all claims arising out of the same transaction or occurrence to be heard and determined in the same action. * * * ” Case law as to the jurisdictional requirements for a third party defendant’s claim since 1946 is scanty. Bernstein v. N. V. Nederlandsche-Amerikaansche, etc., 9 F.R.D. 557 (S.D.N.Y., 1949), held that independent jurisdiction is not necessary. Shverha v. Maryland Cas. Co., 110 F.Supp. 173 (E.D.Pa., 1953) and James King & Son, Inc. v. Indemnity Insurance Company of North America, 178 F.Supp. 146 (S.D.N.Y., 1959) held that it is. The Shverha case was based" }, { "docid": "22828217", "title": "", "text": "Provident Tradesmens Bank and Trust Co., E.D. Pa., 1962, 30 F.R.D. 171; James King & Son, Inc., v. Indemnity Insurance Company, S.D.N.Y., 1959, 178 F.Supp. 146; Shverha v. Maryland Cas. Co., E.D.Pa., 1953, 110 F.Supp. 173; Bernstein v. N. V. Nederlandsche-Amerikaansche, etc., S.D.N.Y., 1949, 9 F.R.D. 557; Morris Wheeler & Co. v. Rust Engineering Co., D.Del., 1945, 4 F.R.D. 307 (dicta). . E. g., 1A W. Barron & A. Holtzoff, Federal Practice and Procedure (Wright rev., 1960) § 424 and 1968 Supp., p. 133; 3 J. Moore, Federal Practice, ¶ 14.27 [2] (1968) ; C. Wright, Handbook of the Law of the Federal Courts, § 76 (2nd ed., 1970) ; Fraser, “Ancillary Jurisdiction and the Joinder of Claims in Federal Courts”, 33 F.R.D. 27 (1964) ; Holtzoff, “Entry of Additional Parties in a Civil Action”, 31 F.R.D. 101 (1963) ; Note, “Diversity Requirements in Multi-party Litigation”, 58 Columb.L.Rev. 548 (1958) ; Note, “The Ancillary Concept and the Federal Rules”, 64 Harv.L.Rev. 968 (1951). . 3 Moore, supra, n. 4, at 724-726 states: The cases are in disagreement on the requirement of independent jurisdictional grounds to support the third-party defendant’s claim against the plaintiff. Since it is analogous to a compulsory counterclaim under Rule 13(a), the claim might be considered ancillary to the main action. However the overwhelming weight of authority, which requires independent jurisdiction for a claim asserted by the plaintiff against the third party, militates against a contrary rule when the third party takes the initiative to exercise a corresponding right in claiming against the plaintiff. Admittedly, there is, in such instances, little chance of a collusive attempt to circumvent diversity limitations; only by the most remote coincidence could a third party find a friendly defendant to implead him, ostensibly on a claim of recovery over, but in reality for the purpose of allowing the third party to assert a claim against the plaintiff. In addition, it may be argued that the plaintiff, by bringing his action has submitted to all claims arising out of the “transaction or occurrence” that is the subject matter of his claim against the" }, { "docid": "18258119", "title": "", "text": "could not stand: Morris, Wheeler & Co., Inc. v. Rust Engineering Co., 4 F.R.D. 307 (Del., 1945). The Advisory Committee Notes on the 1946 Amendments state (see 28 U.S.C.A. ff. Rule 14): “ * * * A new sentence has also been inserted giving the third-party defendant the right to assert directly against the original plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the' third-party plaintiff. This permits all claims arising out of the same transaction or occurrence to be heard and determined in the same action. * * * ” Case law as to the jurisdictional requirements for a third party defendant’s claim since 1946 is scanty. Bernstein v. N. V. Nederlandsche-Amerikaansche, etc., 9 F.R.D. 557 (S.D.N.Y., 1949), held that independent jurisdiction is not necessary. Shverha v. Maryland Cas. Co., 110 F.Supp. 173 (E.D.Pa., 1953) and James King & Son, Inc. v. Indemnity Insurance Company of North America, 178 F.Supp. 146 (S.D.N.Y., 1959) held that it is. The Shverha case was based solely and entirely on a conclusion of Professor Moore and the King case relied solely on Shverha, without independent rationalization. This was the statement from Moore (3 Moore, “Federal Practice”, § 14.28, p. 503): “ * * * Since, as we have seen, the plaintiff may avail himself of this procedural right [the right to assert by amendment a claim against third party defendant] only where there is an independent jurisdictional ground to support his claim against the third party, it must follow that if the third party takes the initiative to assert a claim against the plaintiff there must be independent jurisdictional grounds in support thereof. * * * ” We are constrained, with the utmost respect, to disagree with Professor Moose and with the two cases which followed his conclusion. It is a tenet of long settled antiquity that once a federal court has validly acquired jurisdiction, its jurisdiction extends to all matters “ancillary” to the main cause of action, even though the ancillary matters lack federal jurisdictional requisites: Lesnik v. Public Industrials" }, { "docid": "22828219", "title": "", "text": "defendant. Similar contentions could be made, however, in favor of allowing the plaintiff to claim against the third party regardless of the presence of independent grounds of jurisdiction: first, the court may always exercise its discretionary powers to deny impleader when the third-party complaint shows no genuine grounds for recovery over; secondly, the very purpose of Rule 14 is to settle related matters in one action if it can be done without extending federal jurisdiction. As a result, a rule that independent grounds of jurisdiction need not exist in cases where the third party seeks to assert a claim against the plaintiff would require a reversal of existing authority in the converse situation. (Footnotes omitted.) . The concept of ancillary jurisdiction is not a recent invention, but lias been a part of our law for at least a century, or more. Generally, claims to property already subject to the jurisdiction of a federal court; bills in equity to protect and effectuate the judgments and decrees of federal courts; as well as proceedings adjunctive to the principal suit, such as the appointment of ancillary receivers, were considered within the ancillary jurisdiction of the federal courts. E. g. Freeman v. Howe, 24 How. 450, 65 U.S. 450, 16 L.Ed. 749 (1861) ; Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673 (1921) ; Mitchell v. Maurer, 293 U.S. 237, 55 S.Ct. 162, 79 L.Ed. 338, 339 (1934). The Supreme Court set down what it termed the “general rule” in Fulton National Bank of Atlanta v. Hozier, 267 U.S. 276, 280, 45 S.Ct. 261, 69 L.Ed. 609 (1925), “that when a Federal court has properly acquired jurisdiction over a cause it may entertain, by intervention, dependent or ancillary con- • troversies; but no controversy can be regarded as dependent or ancillary unless it has a direct relation to property or assets actually or constructively drawn into the court’s possession or control by the principal suit”, but many early decisions seem to go beyond this limited concept of ancillarity. See generally, Wright, supra, n. 4, § 9; Note," }, { "docid": "21430956", "title": "", "text": "FOLLMER, District Judge. The plaintiff, Joseph M. Shverha, a citizen of Pennsylvania, instituted an action in the Court of Common Plea’s of Berks County, Pennsylvania,- against the defendant Maryland Casualty Company, ,'a, Maryland corporation, on a performance bond covering a construction /contract- of- one William B. Albright, also a citizen of Pennsylvania. The suit was removed to this Court on the ground of diversity of citizenship. Maryland Casualty Company as Third-party plaintiff thereafter brought in William B. Albright, the contractor, as a third-party defendant, alleging an indemnity agreement. Albright in his answer seeks to include a counterclaim against plaintiff Shverha on an alleged balance due on .“extras” in connection with the contract. Plaintiff’s action against Maryland Casualty Company has been dismissed by the parties. Plaintiff’s motion to dismiss the counterclaim is pending. The difference between compulsory counterclaims under Rule 13 of the Federal Rules of Civil Procedure, 28 U.S.C.A., and permissive counterclaims under Rule 14, as well as. the question whether those involved are or are not “opposing” parties, must be kept in mind. Professor Moore gives a clear and concise illustration as follows: “(1) A.B. brings suit against C.D., who impleads E.F. E.F. must counterclaim against C.D. in the situations governed by Rule 13(a), since C.D. and E.F. are ‘opposing’ parties within the meaning of Rule 13. “(2) E.F. may counterclaim against C.D. pursuant to Rule 13(b). “(3) E.F. may not counterclaim against A.B. under Rule 13, since they' • are not ‘opposing’ parties. Under Rule 14(a) he may, however, ‘assert’ a claim against A.B. arising out of the same transaction or occurrence that is the subject matter of the plaintiff’s claim against C.D., but this is not a true counterclaim since the parties are not ‘opposing parties’ prior to its service. If E.F. asserts such a claim against A.B., however, they become opposing parties and A.B. must counterclaim against E.F. in the situations covered by Rule 13(a) and may counterclaim under Rule 13(b). “.(4) If A.B. asserts a claim against E.F. arising out of the same subject matter as his original claim against C. D., E.F. must counterclaim" }, { "docid": "3162314", "title": "", "text": "independent basis of federal jurisdiction is required for compulsory counterclaims. See 3 Moore’s Federal Practice ¶ 13.15[1], at 13-280-81; Moore v. New York Cotton Exchange, 270 U.S. 593, 609-10, 46 S.Ct. 367, 370-71, 70 L.Ed. 750 (1926) (sustaining ancillary jurisdiction over a counterclaim that arose out of same transaction as the plaintiff’s federal claim). This principle applies here as well. As the Seventh Circuit recently reasoned in Evra Corp. v. Swiss Bank Corp., 673 F.2d 951, 960 (7th Cir.), cert. denied, 459 U.S. 1017, 103 S.Ct. 377, 74 L.Ed.2d 511 (1982), the third-party defendant “may not invoke the jurisdiction of the federal courts-in order to bring a state-law claim against a nondiverse party and then use the lack of diversity to force that party to bring its identical claim ... in a state court.” See also 3 Moore’s Federal Practice ¶ 14.27[2], at 14-119; L & E Co. v. United States, 351 F.2d at 882. This result is consistent with Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). The Court there held that 28 U.S.C. § 1332 impliedly negated the exercise of ancillary jurisdiction over plaintiff’s claim under Rule 14(a) against a non-diverse, impleaded third-party that had not asserted any claims against plaintiff. Kroger, a citizen of Iowa, had brought a wrongful death action for negligence against a Nebraska defendant that impleaded what was later revealed to be an Iowa corporation for contribution as a joint tortfeasor. Kroger then amended her complaint to claim negligence against the impleaded Iowa corporation. In holding that Kroger’s Rule 14(a) claim was not within the statutory grant of section 1332, the Court distinguished claims such as impleader, cross-claims, counterclaims, and intervention as of right, over which the lower federal courts had often exercised ancillary jurisdiction, 437 U.S. at 375-77 & n. 18, 98 S.Ct. at 2403-04 & n. 18. The Court stated that “the context in which the nonfederal claim is asserted is crucial.” Id. at 376, 98 S.Ct. at 2404. First, plaintiffs claim against the nondiverse third-party corporation was “entirely separate from her original" }, { "docid": "22828199", "title": "", "text": "and that Revere has been unjustly enriched by its performance and seeks to recover $1,328,880. Revere moved to dismiss Fuller’s Rule 14(a) counterclaim on the ground that there was no diversity of citizenship between Revere and Fuller, both being incorporated in the State of Maryland, and that an independent ground of federal jurisdiction is required to support a Rule 14(a) counterclaim. The District Court held Fuller’s counterclaim to be within the ancillary jurisdiction of the federal courts and overruled Revere’s motion. Although the question of whether a Rule 14(a) counterclaim must be supported by an independent ground of federal jurisdiction has never been raised on the appellate level, there are six reported district court decisions dealing with the question and the problem has been discussed in the treatises and current legal literature. These authorities, however, are divided. The first case to hold that an independent ground of jurisdiction is necessary before a third-party defendant may assert a claim against the original plaintiff was Morris, Wheeler & Co. v. Rust Engineering Co., supra, n. 3. This ease, which was decided prior to the 1946 amendment to Rule 14 allowing the third-party defendant to assert a claim directly against the original plaintiff, held that such a claim was not cognizable as a Rule 13 counterclaim because the plaintiff had not asserted a claim against the third-party defendant and thus the plaintiff and the third-party defendant were not “opposing parties” as required by Rule 13. The court went on to say, in what seems to be dicta, that the third-party’s claim was independent of the main claim and thus required an independent ground of federal jurisdiction. In Shverha v. Maryland Casualty Co., supra, n. 3, the court followed the lead of Professor Moore and concluded that the third-party defendant must have an independent ground of federal jurisdiction to assert a Rule 14(a) counterclaim against the original plaintiff since the original plaintiff must have an independent ground of federal jurisdiction to assert a direct claim against the third-party defendant. James King & Sons, Inc. v. Indemnity Insurance Company, supra, n. 3, follows Shverha and" }, { "docid": "15231447", "title": "", "text": "The court in Sklar v. Hayes, supra, at 596, stated: “Just as controversies presented by third-party complaints are within the ancillary jurisdiction of the courts, so are controversies presented by assertion of claims against third-party defendants by plaintiffs. To hold otherwise would be to deny practical effect to Rule 14 of many cases. The object of the Rule is to avoid circuity of action and multiple suits, to adjust in a single suit the several phases of the same controversy.” Judge Holtzoff has expressed disagreement with the rule requiring independent jurisdiction: “It would seem, perhaps, that a separate basis for jurisdiction and venue should not be needed to justify the assertion of the plaintiff’s claim as against a third-party defendant. The prevailing view is, however, to the contrary. This attitude from a practical standpoint, may lead to failure of justice in some cases. Some of the beneficent aspects of third-party practice may be frustrated. As a matter of theory and logic, it would seem reasonable to hold that a third-party claim is ancillary and auxiliary to the main suit for all purposes, and not only as between the third-party plaintiff and the third-party defendant.” Holtzoff, Entry of Additional Parties in a Civil Action, 31 F.R.D. 101, 110 (1963). The same view is espoused by Professor George B. Fraser, Ancillary Jurisdiction and the Joinder of Claims in the Federal Courts, 33 F.R.D. 27, 41 (1964). Professor Moore further states that other contentions may be made in favor of allowing the plaintiff to assert claims against the third-party defendant regardless of the presence of independent grounds of jurisdiction. “ * * * first, the court may always exercise its discretionary powers to deny impleader when the third-party complaint shows no genuine grounds for recovery over; secondly, the very purpose of Rule 14 is to settle related matters in one action if it can be done without extending federal jurisdiction. As a result, a rule that independent grounds of jurisdiction need not exist in eases where the third party seeks to assert a claim against the plaintiff would require a reversal of existing" }, { "docid": "22055476", "title": "", "text": "third-party claim under Rule 14 is fortified by cases in the cognate field of compulsory counterclaims under Rule 13. This court is committed to the majority rule that such a counterclaim — even one which impleads a new party — may rest on ancillary jurisdiction without need for an independent ground of federal jurisdiction. United Artists Corp. v. Masterpiece Productions, Inc., 2 Cir., 221 F.2d 213; Lesnik v. Public Industrial Corp., 2 Cir., 144 F.2d 968, 975. See Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750; 3 Moore’s Federal Practice, 13.15. A rüle of procedure, of course, however convenient and salutary it may be, is without efficacy to extend the jurisdiction of a court. See Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148; Fed.Rules Civ.Proc., Rule 82. But Rule 14 does not extend jurisdiction. It merely sanctions an impleader procedure which rests upon the broad conception of a claim as comprising a set of facts giving rise to rights flowing both to and from a defendant. For solution of the incidental jurisdictional problems which often attend utilization of the procedure, the concept of ancillary jurisdiction, which long antedated the Federal Rules, may often be drawn upon. See, e. g., Dewey v. West Fairmont Gas Coal Co., supra; Moore v. New York Cotton Exchange, supra; Empire Lighting Fixture Co. v. Practical Lighting Fixture Co., 2 Cir., 20 F.2d 295; Lesnik v. Public Industrial Corp., supra; 3 Moore’s Federal Practice, ¶ 14.02; The Ancillary Concept and the Federal Rules, 64 Harv.L.Rev. 968. In this case, we hold, the jurisdiction which the court below had acquired over the plaintiff’s claim was broad enough to comprehend jurisdiction of the ancillary third-party claim and that the ancillary jurisdiction attached when the impleader was accomplished. We also hold that the ancillary jurisdiction over the third-party complaint was not lost when the main cause of action was settled. Generally, in a diversity action, if jurisdictional prerequisites are satisfied when the suit is begun, subsequent events will not work an ouster of jurisdiction. Mullen v. Torrance, 9" } ]

[ { "docid": "3035373", "title": "", "text": "out himself. It was another hour before Langston was able to pass a note to a medical technician, who arranged for him to be transferred to the emergency room of the Joliet prison. Lang-ston claims that Clark disregarded an excessive risk to his health and thereby violated the Eighth Amendment. Farmer, 511 U.S. at -, 114 S.Ct. at 1979. The Supreme Court in Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), concluded that “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment.” Id. (internal quotation omitted). As Estelle recognized, a prison official may evidence deliberate indifference by failing to treat or delaying the treatment of a serious medical need. However, for liability to exist the medical need must be objectively serious. Farmer, 511 U.S. at -, 114 S.Ct. at 1977 (“First, the deprivation alleged must be objectively ‘sufficiently serious.’”) (quoting Wilson v. Setter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991)). Rape is clearly a severe injury. If Langston was raped, as he claims, and not trying to extort money from the state, as prison officials claim, Lt. Clark’s response was wholly inappropriate. But that alone does not make it a constitutional violation. No matter his motives, Clark’s failure to obtain immediate medical care for Lang-ston constitutes an Eighth Amendment violation only if the delay was “objectively, sufficiently serious” to constitute the “denial of the minimal civilized measures of life’s necessities.” Farmer, 511 U.S. at-, 114 S.Ct. at 1977. Here Clark’s failure to respond to Langston’s complaint resulted in a one-hour delay. We have held in the past that a two-hour delay is not an unreasonably long wait for an x-ray, an examination, and possibly a set of a fracture. Murphy v. Walker, 51 F.3d 714, 717 (7th Cir.1995). In fact, the public often waits longer at hospital emergency rooms. Moreover, we agree with the Eighth Circuit that “[a]n inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence" } ]

[ { "docid": "17674680", "title": "", "text": "(1976). The Court found that deliberate indifference can be manifested in at least the following three manners: “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.” Id. at 104-05, 97 S.Ct. 285 (citations omitted). Smith alleged in his complaint that he was prescribed treatment by Dr. Patel for his foot infection and that when he sought to receive that treatment, he was unable to do so because Nurse Smith ripped up the OTR, which authorized his treatment. Under the standard outlined in Estelle, Smith argues that this conduct meets all three of the scenarios. Because we find that Smith has pled deliberate indifference in the form of delay or interference with treatment once prescribed, the other form of indifference under Estelle is inapplicable. In Estelle, the Supreme Court endorsed the Sixth Circuit’s finding in Westlake v. Lucas, 537 F.2d 857 (6th Cir.1976) that delayed medical treatment can constitute a manifestation of deliberate indifference. 429 U.S. at 104-05 n. 11, 97 S.Ct. 285 (citing Westlake, 537 F.2d 857). In that case, the inmate alleged that “[although jail officials were aware of his condition [bleeding ulcer] ... they refused to grant Appellant’s requests until ordered to do so by a doctor.” Westlake, 537 F.2d at 859. The Sixth Circuit reversed the district court’s dismissal of the complaint, finding that the inmate had “adequately stated a cause of action for deprivation of needed medical care....” Id at 861. Smith similarly stated a claim for deprivation of needed medical care. His complaint stated that he was prescribed medicine by Dr. Patel, and that the OTR enabling him to receive the ordered treatment was destroyed by Nurse Smith, ultimately depriving him of care. In pleading that Nurse Smith destroyed the means for him to access the medical treatment ordered by the doctor, Smith alleged facts sufficient to constitute intentional denial of treatment because mere delay or interference can be sufficient to constitute a violation of the Eighth Amendment. Estelle, 429 U.S. at 104-05," }, { "docid": "499750", "title": "", "text": "arguable basis in law if it is \"based on an indisputably meritless legal theory,\" such as if the complaint alleges the violation of a legal interest which clearly does not exist. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1832-33, 104 L.Ed.2d 338 (1989). This court reviews a § 1915(d) dismissal for abuse of discretion. Graves v. Hampton, 1 F.3d 315, 317 (5th Cir.1993). McCormick's Eighth Amendment claim can only succeed if he has pled that the prison medical officials were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Deliberate indifference encompasses only unnecessary and wanton infliction of pain repugnant to the conscience of mankind. Id. at 105-106, 97 S.Ct. at 291-92. See also, Farmer v. Brennan, 511 U.S. 825, 838-40, 114 S.Ct. 1970, 1980, 128 L.Ed.2d 811 (1994) (\"subjective recklessness as used in the criminal law\" is the appropriate test for deliberate indifference). Not only did IVicCormick state at the Spears v. McCotter, 766 F.2d 179 (5th Cir.1985) hearing that he did not believe that Dr. Snyder or nurse Williams acted with malice or with intent to harm him when they required him to undergo INH therapy, but the undisputed facts, cited above, belie any such contention or inference. The officials moth-tered his health during the course of treatment to deal with side effects. This claim was properly dismissed as frivolous. Similarly, the substantive due process claim that McCormick asserts based on Washington v. Harper, 494 U.S. 210, 227, 110 S.Ct. 1028, 1039-40, 108 L.Ed.2d 178 (1990), is unfounded. Harper established that a prison inmate may be subjected to forced administration of psychotropic drugs to alleviate mental ifiness if the jnmate posed a danger, to himself or others and the treatment was in the inmate's medical interest. Previously, however, the Supreme Court upheld as constitutional a statute requiring all adults to receive a smallpox vaccination. Jacobson v. Massachusetts, 197 U.S. 11, 31, 25 S.Ct. 358, 363, 49 L.Ed. 643 (1905). In this case, the prison's interest in preventing the spread of tuberculosis, a" }, { "docid": "22124977", "title": "", "text": "the district court must view the evidence in the light most favorable to the nonmoving party. See Duchon v. Cajon Co., 791 F.2d 43, 46 (6th Cir.1986). Specifically, the evidence of the nonmoving party must be believed and all justifiable inferences must be drawn in his favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The non-moving party, however, must provide more than mere allegations or denials and must do more than charge conspiracy without giving any significant probative evidence tending to support the complaint. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. We review the district court’s grant of summary judgment de novo. The standards for stating a claim for an Eighth Amendment violation arising from denial of medical care and for a First Amendment retaliation action are well-known and settled law in this Circuit and are not disputed by the parties. To sustain a claim under the Eighth Amendment for denial of medical care, a plaintiff must show that the defendants were deliberately indifferent to the plaintiffs serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct, 285, 50 L.Ed.2d 251 (1976) (denial of medical care may result in pain and suffering which no one suggests would serve a penological purpose). This requires that the plaintiff show an objective and subjective component: (1) a sufficiently grave deprivation, such as medical needs; and (2) a sufficiently culpable state of mind. See Brooks v. Celeste, 39 F.3d 125 (6th Cir.1994). “[A] prisoner who suffers pain needlessly when relief is readily available has a cause of action against those whose deliberate indifference is the cause of his suffering.” Boretti v. Wiscomb, 930 F.2d 1150, 1154-55 (6th Cir.1991); see also Westlake, 537 F.2d at 860. The Supreme Court recently held that a prison official acts with deliberate indifference when “he acts with criminal recklessness,” a state, of mind that requires that the official act with conscious disregard of a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1980, 128 L.Ed.2d 811 (1994). To sustain a claim for abridgement of First Amendment rights, the plaintiff" }, { "docid": "22248573", "title": "", "text": "202 (1986), particularly where there has been an opportunity for discovery, Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The judge does not “weigh the evidence and determine the truth of the matter but .. determine^] whether there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505. For such a motion, the Court views the evidence and draws all reasonable inferences in the light most favorable to the non-moving party. See Matsushita Elec. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). As to Blackmore’s denial of medical care claim, the issue of “whether [Defendants] were deliberately indifferent is a mixed issue of law and fact.... The resolution of this question requires us to compare [Defendants’] conduct with a legal standard of deliberate indifference.” Williams v. Mehra, 186 F.3d 685, 690 (6th Cir.1999) (en banc). B. Deliberate Indifference The Eighth Amendment forbids prison officials from “unnecessarily and wantonly inflicting pain” on an inmate by acting with “deliberate indifference” toward the inmate’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Pretrial detainees are analogously protected under the Due Process Clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Whether a convicted prisoner or a pretrial detainee, deliberate indifference to one’s need for medical attention suffices for a claim under 42 U.S.C. § 1983. Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir.1985). Prison officials’ deliberate indifference violates these rights “[w]hen the indifference is manifested by ... prison guards in intentionally denying or delaying access to medical care ....” for a serious medical need. Estelle, 429 U.S. at 104, 97 S.Ct. 285. A constitutional claim for denial of medical care has objective and subjective components. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Napier, 238 F.3d at 742; Brown v. Bargery, 207 F.3d 863, 867 (6th Cir.2000). The objective component requires the existence of" }, { "docid": "3491715", "title": "", "text": "prison grievance forms to the magistrate. The magistrate analyzed Jones’s grievances, and recommended that Jones’s complaint be dismissed without prejudice because the grievance forms did not show Jones had exhausted his prison remedies. First, the magistrate noted that the grievance forms were not submitted until after the lawsuit was filed. Second, the magistrate noted the grievances were returned without decision on the merits because Jones failed to follow proper grievance procedure. Thus, the grievances did not receive substantive review by prison authorities. After de novo review, the district court adopted the magistrate’s recommendations and dismissed Jones’s petition without prejudice for failure to exhaust all claims. Jones now appeals pro se. Having reviewed the district court’s findings of fact for clear error and conclusions of law de novo, we affirm the dismissal of Jones’s complaint. Walker v. Maschner, 270 F.3d 573, 576 (8th Cir.2001). The Prison Litigation Reform Act (PLRA) amendments to 42 U.S.C. § 1997e(a), mandate exhaustion of available administrative remedies before an inmate files suit. Booth v. Churner, 532 U.S. 731, 738-39, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Because Jones’s medical classification is unchanged, filing a proper grievance against all defendants remains an available remedy. Jones must exhaust prison grievances before filing suit in federal court. Maschner, 270 F.3d at 576-77. Thus, the district court correctly dismissed Jones’s complaint without prejudice. Graves v. Norris, 218 F.3d 884, 885 (8th Cir.2000) (dismissing petition when not all claims are exhausted). Although Jones has not exhausted available grievance procedures, we nevertheless dismiss the complaint as frivolous under 42 U.S.C. § 1997e(c) (2000). A complaint is frivolous when it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). To succeed on his complaint, Jones must show defendants were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The record shows that Jones received 13 medical examinations in 2001, an evaluation to determine the need for reclassification, and recommendations to treat his muscular back pain with Tylenol." }, { "docid": "22541413", "title": "", "text": "a claim for relief, as the only defendant Cooper named was Kemna “et al.,” and Cooper did not explain how Kemna was responsible for the alleged violations of his rights. See Frey v. City of Herculaneum, 44 F.3d 667, 672 (8th Cir.1995) (complaint which did not indicate how defendants were involved in alleged violations and was conclusory failed to meet notice-pleading standard). It seems clear, however, that Cooper intended to have the two complaints read together; and it appears the District Court considered the original complaint to some extent because the dismissal order references “26 named defendants,” whereas the amended complaint lists only Kemna “et al.” as defendants. In any event, we believe Cooper’s original complaint is lengthy not because he failed to state his claims concisely or in compliance with Rule 8, but because he named so many defendants. Cf. Tatum v. Iowa, 822 F.2d 808, 810 (8th Cir.1987) (per curiam) (“While all pleadings are to be construed to do substantial justice ... the pleading must at a minimum be sufficient to give the defendant notice of the claim.”). Upon de novo review of the original complaint, see McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997) (dismissal under § 1915A for failure to state claim is reviewed de novo), we believe Cooper stated claims for relief against several defendants, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam) (pro se litigant’s allegations are construed liberally). We conclude that Cooper stated a claim against health care administrator Rhonda Almanza for deliberate indifference to serious medical and dental needs in violation of the Eighth Amendment, as Cooper alleged he filed a medical service request regarding his painful dental problems (decayed and cracked teeth) and was refused treatment. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (Eighth Amendment violated where prison officials are deliberately indifferent to prisoner’s serious medical needs); Boyd v. Knox, 47 F.3d 966, 969 (8th Cir.1995) (delay in dental care coupled with knowledge of patient’s pain can support Eighth Amendment claim). We also" }, { "docid": "8656235", "title": "", "text": "officials have shown such indifference to his medical needs that it offends “evolving standards of decency,” a valid constitutional claim has been made. This Circuit has followed Estelle and recognized the propriety of such actions against prison authorities in Westlake v. Lucas, 537 F.2d 857 (6th Cir.1976). In Westlake, the Court held that a prisoner who suffers pain needlessly when relief is readily available has a cause of action against those whose deliberate indifference is the cause of his suffering. 537 F.2d at 860. Thus, we must conclude that the appellant’s complaint states a cause of action if it satisfies the requirements of Estelle and Westlake, supra. Upon applying the standards of Estelle v. Gamble, supra, and Westlake v. Lucas, supra, the Court is of the opinion that the appellant has alleged facts which constitute deliberate indifference to his dietary needs and his medication. As such, we conclude that it states a valid cause of action under Westlake. The district court’s determination that appellant’s claim is frivolous embodies a preliminary conclusion that the substance of appellant’s claim would not entitle him to relief under any construction either in law or in fact. Boyce v. Alizaduh, 595 F.2d 948, 952 (4th Cir.1979). Since Westlake establishes the validity of a claim for deliberate indifference, this Court concludes that the district court’s dismissal of this complaint as frivolous was clearly erroneous. Although the denial and/or indifference to appellant’s medical needs existed for only a short period of time, the complaint still satisfies the standards articulated in Estelle and Westlake and withstands the test of frivolity. Therefore, the appellant is entitled the opportunity to offer his proof. Accordingly, the district court’s judgment is Reversed and the case is Remanded for further proceedings consistent with this opinion. . Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), was analyzed under the Eighth Amendment prohibition against cruel and unusual punishment. This amendment has been construed to encompass broad concepts of dignity, humanity, and decency against which penal measures are evaluated. See, e.g., Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909," }, { "docid": "886347", "title": "", "text": "with heart attack symptoms. The district court dismissed Mattox’s claim for failure to plead that Mattox suffered from an objectively serious medical condition on the night in question. Mattox argues that the risk to his health was so patently obvious that he did not need to provide any proof that he actually .suffered a cardiac event. We disagree. The Eighth Amendment prohibits prison officials and doctors from showing deliberate indifference to an inmate’s serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). In order to establish a deliberate indifference claim, the prisoner must show that the defendant was “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Put differently, a deliberate indifference claim “has objective and subjective components.” Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004). “The objective component requires the existence of a ‘sufficiently serious’ medical need.” Id. (quoting Farmer, 511 U.S. at 834, 114 S.Ct. 1970). “The subjective component requires an inmate to show that prison officials have ‘a sufficiently culpable state of mind in denying medical care.’ ” Id. (quoting Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000)). This Circuit recognizes two theories under which a plaintiff can demonstrate the objective component of an Eighth Amendment deliberate indifference claim. First, if a plaintiff suffered from a minor or non-obvióus medical condition, he can show that his condition was objectively serious “if it is ‘one that has been diagnosed by a physician as mandating treatment.’ ” Id at 897 (quoting Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990)). Second, “where a plaintiff’s claims arise from an injury or illness ‘so obvious that even a layperson would easily recognize the necessity for a doctor’s attention,’ ” the plaintiff can meet the objective prong by showing “that he actually experienced the need for medical treatment, and that the need was not addressed" }, { "docid": "3491716", "title": "", "text": "1819, 149 L.Ed.2d 958 (2001). Because Jones’s medical classification is unchanged, filing a proper grievance against all defendants remains an available remedy. Jones must exhaust prison grievances before filing suit in federal court. Maschner, 270 F.3d at 576-77. Thus, the district court correctly dismissed Jones’s complaint without prejudice. Graves v. Norris, 218 F.3d 884, 885 (8th Cir.2000) (dismissing petition when not all claims are exhausted). Although Jones has not exhausted available grievance procedures, we nevertheless dismiss the complaint as frivolous under 42 U.S.C. § 1997e(c) (2000). A complaint is frivolous when it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). To succeed on his complaint, Jones must show defendants were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The record shows that Jones received 13 medical examinations in 2001, an evaluation to determine the need for reclassification, and recommendations to treat his muscular back pain with Tylenol. Defendants’ responses to Jones’s interrogatories support their assertions that Jones is-being treated appropriately. To support his contentions, Jones signed affidavits restating concluso-ry allegations about his need for medical care and reclassification. Jones provided no evidence beyond these conclusory allegations, which are insufficient to create a question of material fact. At best, Jones’s allegations state a difference in opinion between himself and his doctors or allege a mistake in classification or treatment. Neither differences of opinion nor medical malpractice state an actionable Constitutional violation. Estelle, 429 U.S. at 105-06, 97 S.Ct. 285; Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir.1990). In addition, the record shows that before the medical grievances, Jones filed a grievance for being required to work in the field without pay. Defendants assert Jones’s medical complaints are an attempt to avoid the prison’s work requirement. Jones has provided no evidence or affidavits to dispute this assertion. We affirm the dismissal of Jones’s complaint. Further, we agree with the magistrate judge that dismissal of Jones’s complaint should be considered a strike within the" }, { "docid": "499749", "title": "", "text": "of all inmates who had tested positive. If inmates are non-compliant, the policy provides that they can be isolated until the Unit Medical Director determines the degree to which isolation is necessary in order to protect staff and other inmates. PCC Policy and Procedure Memorandum # 108-A, effective August 1, 1993. McCormick alleges that he submitted to medication in order to avoid isolation, that the medical officials did not inform him of the potentially severe risks of accepting INH treatment, and that his consent to treatment was never obtained. McCormick did, however, sign a \"Tuberculosis Counseling\" form which the nurse had read to him. Further, he was monitored during the course of treatment, for active tuberculosis and for ~side effects, and he complained of no side effects. A complaint filed IFP may be dismissed as frivolous if it lacks an arguable basis in law or fact. 28 U.S.C. § 1915(d), now redesignated as § 1915(e)(2)(B)(i) by § 804 of the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996). A complaint lacks an arguable basis in law if it is \"based on an indisputably meritless legal theory,\" such as if the complaint alleges the violation of a legal interest which clearly does not exist. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1832-33, 104 L.Ed.2d 338 (1989). This court reviews a § 1915(d) dismissal for abuse of discretion. Graves v. Hampton, 1 F.3d 315, 317 (5th Cir.1993). McCormick's Eighth Amendment claim can only succeed if he has pled that the prison medical officials were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Deliberate indifference encompasses only unnecessary and wanton infliction of pain repugnant to the conscience of mankind. Id. at 105-106, 97 S.Ct. at 291-92. See also, Farmer v. Brennan, 511 U.S. 825, 838-40, 114 S.Ct. 1970, 1980, 128 L.Ed.2d 811 (1994) (\"subjective recklessness as used in the criminal law\" is the appropriate test for deliberate indifference). Not only did IVicCormick state at the Spears v. McCotter, 766 F.2d 179 (5th Cir.1985)" }, { "docid": "17674679", "title": "", "text": "prisoner must allege that “the prison official acted with a sufficiently culpable state of mind and ... [that] the deprivation suffered or injury inflicted on the inmate was sufficiently serious.” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir.2008) (quoting Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir.1996)). The district court did not make a finding regarding whether or not the medical need at issue was sufficiently serious to meet the Eighth Amendment standard, and Nurse Smith conceded that she did not dispute this issue in her motion before the district court, her brief before this Court, or at oral argument. We are, therefore, only left with the task of evaluating whether or not Smith adequately alleged deliberate indifference on the part of Nurse Smith to satisfy the second prong of the Eighth Amendment analysis. The Supreme Court articulated the standard to state a claim of deliberate indifference to serious medical needs of prisoners in violation of the Eighth Amendment in Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The Court found that deliberate indifference can be manifested in at least the following three manners: “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.” Id. at 104-05, 97 S.Ct. 285 (citations omitted). Smith alleged in his complaint that he was prescribed treatment by Dr. Patel for his foot infection and that when he sought to receive that treatment, he was unable to do so because Nurse Smith ripped up the OTR, which authorized his treatment. Under the standard outlined in Estelle, Smith argues that this conduct meets all three of the scenarios. Because we find that Smith has pled deliberate indifference in the form of delay or interference with treatment once prescribed, the other form of indifference under Estelle is inapplicable. In Estelle, the Supreme Court endorsed the Sixth Circuit’s finding in Westlake v. Lucas, 537 F.2d 857 (6th Cir.1976) that delayed medical treatment can constitute a manifestation of deliberate indifference." }, { "docid": "8656234", "title": "", "text": "the plaintiff could prove no set of facts in support of his claim which would entitle him to relief. Id. at 106, 97 S.Ct. at 292. Accord Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Moreover, the allegations in the complaint are taken as true and are to be construed in favor of the plaintiff. Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976); Timson v. Wright, 532 F.2d 552, 553 (6th Cir.1976). The Supreme Court has held that both state and federal prisoners have a constitutionally-guaranteed right to a certain degree of medical treatment while incarcerated. 429 U.S. at 103, 97 S.Ct. at 290. While not every showing of inadequate medical treatment will establish the existence of a constitutional violation, the Eighth Amendment does protect a prisoner from actions amounting to a “deliberate indifference” to his medical needs. Id. at 104, 97 S.Ct. at 291. When an inmate can establish that prison officials have shown such indifference to his medical needs that it offends “evolving standards of decency,” a valid constitutional claim has been made. This Circuit has followed Estelle and recognized the propriety of such actions against prison authorities in Westlake v. Lucas, 537 F.2d 857 (6th Cir.1976). In Westlake, the Court held that a prisoner who suffers pain needlessly when relief is readily available has a cause of action against those whose deliberate indifference is the cause of his suffering. 537 F.2d at 860. Thus, we must conclude that the appellant’s complaint states a cause of action if it satisfies the requirements of Estelle and Westlake, supra. Upon applying the standards of Estelle v. Gamble, supra, and Westlake v. Lucas, supra, the Court is of the opinion that the appellant has alleged facts which constitute deliberate indifference to his dietary needs and his medication. As such, we conclude that it states a valid cause of action under Westlake. The district court’s determination that appellant’s claim is frivolous embodies a preliminary conclusion that the substance of" }, { "docid": "22953114", "title": "", "text": "5 (6th Cir. 1976). . “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, 104-05, 97 S.Ct. at 291 (1976) (footnotes omitted). . 71 P.S. § 1690.106(a) provides, in pertinent part, “Medical detoxification and treatment shall be provided for persons physically dependent upon alcohol or controlled substances at correctional institutions and juvenile detention facilities or in available appropriate medical facilities.” . It should be noted that the Supreme Court, in Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), has ended local government immunity from civil rights suits. Under Monell, however, Fayette County would be liable only for the results of “official policy” and not under a theory of respondeat superior. Id. at 694. Norris v. Frame, 585 F.2d 1183, 1186 n. 8 (3d Cir. 1978). . As Justice Stevens commented in his dissenting opinion in Estelle v. Gamble, supra: Admittedly, it is tempting to eliminate the meritless complaint at the pleading stage. Unfortunately, this “is another instance of judicial haste which in the long run makes waste,” Dioguardi v. Durning, 139 F.2d 774, 775 (CA2 1944) (Clark, J.), cited with approval in Haines v. Kerner, supra, [404 U.S.] at 521 [, 92 S.Ct. 596], In the instant case, if the District Court had resisted the temptation of premature dismissal, the case might long since have ended with the filing of medical records or affidavits demonstrating adequate treatment. 429 U.S. at 113, 97 S.Ct. at 295, 296." }, { "docid": "23466659", "title": "", "text": "his complaint states a claim against Gardner and Chapman for deliberate indifference. He stresses that Gardner essentially forced him to have the molar extracted by falsely stating that fillings are not available to Menard inmates and then performed a “grossly deficient procedure.” Chapman, he continues, purposely delayed his treatment solely for economic reasons, leaving him now with permanent structural damage to his oral and nasal cavity. Our review of a dismissal under § 1915A for failure to state a claim is de novo. Santiago v. Walls, 599 F.3d 749, 755-56 (7th Cir.2010). The Eighth Amendment prohibits cruel and unusual punishment; that guarantee encompasses a prisoner’s right to medical care. It is well established that “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) (quotation marks and citation omitted). This principle applies equally to dental care. Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010). But negligence, even gross negligence, does not violate the Constitution. Estelle, 429 U.S. at 105-06, 97 S.Ct. 285; Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir.2009). Only deliberate indifference or worse in the face of a serious medical need will do. Estelle, 429 U.S. at 103-04, 97 S.Ct. 285; Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir.2008). A delay in treatment may constitute deliberate indifference if the delay exacerbated the injury or unnecessarily prolonged an inmate’s pain. Estelle, 429 U.S. at 104-05, 97 S.Ct. 285; Gayton v. McCoy, 593 F.3d 610, 619 (7th Cir.2010); Edwards v. Snyder, 478 F.3d 827, 832 (7th Cir.2007). There is no question that McGowan’s complaint sufficiently alleges a serious medical need. The issue here is whether the complaint also plausibly suggests that either Gardner or Chapman or both were deliberately indifferent to that need. We conclude that the district court was too hasty in dismissing the claim against Chapman, especially given its duty to construe McGowan’s pro se complaint liberally. See Erickson, 551 U.S. at 94, 127 S.Ct. 2197; Haines v. Kerner," }, { "docid": "22250123", "title": "", "text": "steps in the analysis: (1) whether, considering the allegations in a light most favorable to the party injured, a constitutional right has been violated, and (2) whether that right was clearly established. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The initial inquiry is whether a constitutional right was violated, if the allegations are established. Id. Pre-trial detainees have a right under the Fourteenth Amendment to adequate medical treatment, a right that is analogous to the right of prisoners under the Eighth Amendment. Watkins v. City of Battle Creek, 273 F.3d 682, 685-86 (6th Cir.2001). A cause of action under § 1983 for failure to provide adequate medical treatment requires a showing that “the defendants acted with ‘deliberate indifference to the serious medical needs’ ” of the pre-trial detainee. Watkins, 273 F.3d at 686 (quoting Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). There are two parts to the claim, one objective, one subjective. For the objective component, the detainee must demonstrate “the existence of a ‘sufficiently serious’ medical need.” Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir.2004) .(quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). For the subjective component, the detainee must demonstrate that the defendant possessed “a sufficiently culpable state of mind in denying medical care.” Id. (quoting Brown v. Bargery, 207 F.3d 863, 867 (6th Cir.2000)). First, Carter’s medical need was “sufficiently serious” because — taking the facts in a light most favorable to the Estate— Carter was demonstrating the classic signs of an impending heart attack. As we recently explained: [WJhere a plaintiffs claims arise from an injury or illness so obvious that even a layperson would easily recognize the necessity for a doctor’s attention, the plaintiff need not present verifying medical evidence to show that, even after receiving the delayed necessary treatment, his medical condition worsened or deteriorated. Instead, it is sufficient to show that he actually experienced the need for medical treatment, and that the need was not addressed within a reasonable time frame." }, { "docid": "8656233", "title": "", "text": "of Louisville Medical Center. The magistrate made findings of fact and conclusions of law and recommended that the complaint be dismissed as frivolous pursuant to 28 U.S.C. § 1915. Judge John-stone adopted the magistrate’s findings and conclusions and, accordingly, dismissed the complaint. Appellant appealed from the district court’s dismissal of the case. The district court’s determination that a complaint is frivolous pursuant to 28 U.S.C. § 1915 is a discretionary ruling. Boyce v. Alizaduh, 595 F.2d 948, 951 (4th Cir.1979). In reviewing such a dismissal, however, this Court must examine the pro se allegations to determine whether they are sufficient to overcome a charge of frivolousness. Id. at 953. Under the standards enunciated by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), a pro se complaint that alleges deliberate indifference to a prisoner’s medical needs'is to be liberally construed. Id. at 103-04, 97 S.Ct. at 290. As such, the complaint can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief. Id. at 106, 97 S.Ct. at 292. Accord Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Moreover, the allegations in the complaint are taken as true and are to be construed in favor of the plaintiff. Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976); Timson v. Wright, 532 F.2d 552, 553 (6th Cir.1976). The Supreme Court has held that both state and federal prisoners have a constitutionally-guaranteed right to a certain degree of medical treatment while incarcerated. 429 U.S. at 103, 97 S.Ct. at 290. While not every showing of inadequate medical treatment will establish the existence of a constitutional violation, the Eighth Amendment does protect a prisoner from actions amounting to a “deliberate indifference” to his medical needs. Id. at 104, 97 S.Ct. at 291. When an inmate can establish that prison" }, { "docid": "22953113", "title": "", "text": "condition. A record of the result of such examination shall be kept as a part of the records of such jail or penal institution. 37 Pa.Code § 95.232(a)(1) provides: (a) Minimum requirements. The following are the minimum requirements applicable for medical and health services: (1) All persons admitted to jail shall, within 48 hours after his [sic] admission, be examined as to his physical condition and also as to his mental condition. A record of the result of such examination shall be kept as a part of the permanent jail documents. Reference should be made to act of May 10, 1921 P.L. 433 (61 P.S. §§ 1-4). . We will distinguish between cases where the complaint alleges a complete denial of medical care and those alleging inadequate medical treatment. “Where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.” Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976). . “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, 104-05, 97 S.Ct. at 291 (1976) (footnotes omitted). . 71 P.S. § 1690.106(a) provides, in pertinent part, “Medical detoxification and treatment shall be provided for persons physically dependent upon alcohol or controlled substances at correctional institutions and juvenile detention facilities or in available appropriate medical facilities.” . It should be noted that the Supreme Court, in Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), has ended local government immunity from civil rights suits. Under Monell, however, Fayette County would be liable only for the results of “official policy” and not under a theory of respondeat superior. Id. at 694. Norris v. Frame, 585 F.2d 1183, 1186 n. 8 (3d Cir. 1978). . As Justice Stevens commented in" }, { "docid": "13122484", "title": "", "text": "2200. Moreover, “[a] document filed pro se is to be liberally construed ... and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Id. (internal quotation marks and citations omitted). II. Brown argues that the district court erred in dismissing his claims against the District for alleged failures of medical care. We agree. A. A municipality is a “person” subject to suit under 42 U.S.C. § 1983, although its liability is limited. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To determine whether a plaintiff can hold a municipality liable under § 1983, we must answer two questions. “First, the court must determine whether the complaint states a claim for a predicate constitutional violation. Second, if so, then the court must determine whether the complaint states a claim that a custom or policy of the municipality caused the violation.” Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C.Cir.2003) (citing Collins v. City of Harker Heights, 503 U.S. 115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)). Brown’s complaint alleges a violation of the Eighth Amendment’s prohibition against “cruel and unusual punishments.” U.S. CONST. amend. VIII. The Supreme Court has placed within the ambit of this prohibition “punishments ... which involve 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). When a prisoner claims that his custodian has violated the Eighth Amendment by failing to provide adequate medical care, he “must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Id. at 106, 97 S.Ct. 285. One example of such “deliberate indifference” is a prison doctor or official who “intentionally den[ies] or delay[s] access to medical care or intentionally interfered with the treatment once prescribed.” Id. at 105, 97 S.Ct. 285. A claim of negligence is insufficient. Id. at 105-06, 97 S.Ct. 285. The court must next determine whether the plaintiff has alleged facts sufficient to hold the municipality liable." }, { "docid": "17190729", "title": "", "text": "conclude that once an in forma pauperis plaintiff raises a cognizable claim, a district court may not dismiss it sua sponte under section 1915(d), even if the complaint does not flesh out all of the requisite details. So long as the in forma pauperis plaintiff raises a cognizable claim, dismissal on the basis of factual deficiencies in the complaint must wait until the defendant attacks the lack of such details on a Rule 12(b)(6) motion. See Wilson v. Rackmill, 878 F.2d 772, 774-75 (3d Cir.1989) (identifying failure to state facts with requisite specificity as “a problem more properly addressed under Rule 12(b)(6)”). Requiring a Rule 12(b)(6) motion as a predicate for dismissal on the basis of factual deficiencies guarantees that the in forma pauperis plaintiff will have benefit of certain fundamental procedural protections, such as notice of the alleged deficiencies of his complaint and an opportunity to refine those alleged deficiencies, see Neitzke, 109 S.Ct. at 1834, so as to avoid dismissal. Kelly has refused to defend this appeal on grounds that he was never properly served with the complaint. Because the district court dismissed the complaint prior to the filing of an answer, we have no basis on which to address this argument and accordingly express no opinion on it. Judgment reversed. Cause remanded. GEORGE C. PRATT, Circuit Judge (dissenting): I dissent. We should affirm the district judge’s wise dismissal of this in forma pauperis complaint under 28 U.S.C. § 1915(d), because the claim is based on not one, but two “indisputably meritless legal theories].” Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1835, 104 L.Ed.2d 338 (1989). First, the majority concludes that Nance’s allegation that he was deliberately denied medical treatment states a cognizable claim of cruel and unusual punishment under the eighth amendment. I cannot join in that conclusion. To sink to the level of a constitutional violation a prison’s medical mistreatment must not only constitute “deliberate indifference”, but that indifference must be to a “serious medical need”. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). Nance’s complaint of" }, { "docid": "4186170", "title": "", "text": "City Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978); see also Oklahoma City v. Tuttle, 471 U.S. 808, 824-25 n. 8, 105 S.Ct. 2427, 2436 n. 8, 85 L.Ed.2d 791 (1985) (requiring “affirmative link” between municipal policy and constitutional violation); Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (municipal policy must be “moving force” behind constitutional deprivation). The constitutional deprivation complained of here is the denial of medical care. The government’s failure to provide medical care for prison inmates constitutes an eighth amendment violation and is thus actionable under § 1983 when it evinces “deliberate indifference to a prisoner’s serious illness or injury.” Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976). Detainees awaiting trial are similarly afforded Estelle-like protection against medical mistreatment under the due process clause. See K.H. v. Morgan, 914 F.2d 846, 849 (7th Cir.1990); Hamm v. DeKalb County, 774 F.2d 1567, 1572-74 (11th Cir.1985). To cast this notion in the language of tort, the County has an affirmative duty “to provide persons in its custody with a medical care system that meets minimal standards of adequacy.” Benson v. Cady, 761 F.2d 335, 339 (7th Cir.1985) (quoting Wellman v. Faulkner, 715 F.2d 269, 271 (7th Cir.), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984). We note, however, that a § 1983 plaintiff must demonstrate more than mere negligence on the part of government personnel in the diagnosis or treatment of a medical condition: a complaint alleging no more than “an inadvertent failure to provide adequate medical care” does not state a valid claim of medical mistreatment under Estelle. 429 U.S. at 105, 97 S.Ct. at 291-92. Holmes has tendered a distinct type of medical mistreatment claim. He contends that the Cook County Jail and Cermak Health Services deprived him of his constitutional rights not merely by failing to treat him, but “by failing to institute systems or procedures to ensure that 1) patients in dire need of regular treatment are not forgotten, 2)" } ]

[ { "docid": "22657509", "title": "", "text": "satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. The issue becomes somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. This construction gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the “substantial showing” standard provided in Barefoot, supra, at 893, and n. 4, and adopted by Congress in AEDPA. Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted. Determining whether a COA should issue where the petition was dismissed on procedural grounds has two compo nents, one directed at the underlying constitutional claims and one directed at the district court’s procedural holding. Section 2253 mandates that both showings be made before the court of appeals may entertain the appeal. Each component of the § 2253(c) showing is part of a threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments. The recognition that the “Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of,” Ashwander" } ]

[ { "docid": "7870289", "title": "", "text": "(Michie 2000) (vesting exclusive jurisdiction in the Supreme Court of Virginia of petitions for writs of habeas corpus by petitioners held under a sentence of death), and was denied relief. Thereafter, he filed a petition pursuant to 28 U.S.C.A. § 2254 in the United States District Court for the Western District of Virginia. On March 28, 2002, the district court denied relief on that petition. Swisher seeks a COA as to numerous claims raised in the district court. We address the following three claims below: (1) that the Commonwealth knowingly elicited perjurious testimony; (2) that Swisher received ineffective assistance of counsel; and (3) that the Commonwealth failed to turn over Brady material. II. We may only issue a COA if Swisher has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West Supp.2002). Absent a COA, “an appeal may not be taken” to this court from the district court’s denial of relief on the § 2254 petition. Id. § 2253(c)(1); cf. Miller-El v. Cockrell, - U.S. -, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (noting that a COA is “a jurisdictional prerequisite” to consideration of an appeal by a prisoner denied habeas relief in the district court). To make the requisite substantial showing, “a petitioner must ‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.’ ’” ” Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595 (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983))). The Supreme Court has held that “[wjhere a district court has rejected [a petitioner’s] constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, “[w]hen the district court denies a habeas petition on procedural" }, { "docid": "7585281", "title": "", "text": "process. Haynes filed a habeas petition on October 5, 2005, with the District Court for the Southern District of Texas. The district court denied habeas relief in an opinion on January 25, 2007. At the end of the extensive memorandum opinion, the district court appended a relatively short sua sponte denial of COA essentially reciting the standard of review and then concluding: Under the appropriate standard the court finds that Haynes has not shown that this court should certify any issue for appellate consideration. This court DENIES Haynes a COA on all the claims raised by his petition. Id. at *37 (emphasis in original). Haynes now seeks a COA from this court to challenge the district court’s denial of habeas relief. II. STANDARD OF REVIEW A petitioner must obtain a COA before appealing the district court’s denial of habeas relief. 28 U.S.C. § 2253(c). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals ....’” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I) (quoting 28 U.S.C. § 2253(c)(1)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting 28 U.S.C. § 2253(c)). According to the Supreme Court, this requirement includes a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Id. at 484,120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). As the Supreme Court explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district" }, { "docid": "5215502", "title": "", "text": "2011 WL 4826968 (Tex.Crim. App. Oct. 12, 2011). Garza filed his amended federal habeas petition in 2012, which the district court denied. Garza v. Thaler, 909 F.Supp.2d 578, 691 (W.D.Tex.2012). The district court also denied Garza a COA. Id. Garza now requests a COA from this court. II. The AEDPA governs our consideration of Garza’s request for a COA. Under the AEDPA, a state habeas petitioner must obtain a COA before he can appeal the federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a jurisdictional prerequisite without which federal courts of appeals lack jurisdiction to rule on the merits of the appeals from habeas petitioners). A COA is warranted upon a substantial showing of the denial of a constitutional right. § 2253(c)(2). A petitioner satisfies this standard if reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To obtain a COA when the district court has denied relief on procedural grounds, such as procedural default, a petitioner must show both a debatable claim on the merits and that the district court’s procedural ruling is debatable. See id. at 484-85, 120 S.Ct. 1595. The issue is the debatability of the underlying constitutional claim, not the resolution of the debate. Miller-El, 537 U.S. at 342, 123 S.Ct. 1029; see id. at 338, 123 S.Ct. 1029 ([A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail). This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Id. at 336, 123 S.Ct. 1029. In cases involving the death penalty, any doubts as to whether a COA shoúld issue must be resolved in [the petitioner’s] favor. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We" }, { "docid": "19629239", "title": "", "text": "C. Walker as amicus curiae in support of the judgment of the Court of Appeals. She has ably discharged her responsibilities. III A This case comes to the Court in a somewhat unusual procedural posture. Under the Antiterrorism and Effective Death Penalty Act of 1996, there can be no appeal from a final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue \"only if the applicant has made a substantial showing of the denial of a constitutional right.\" § 2253(c)(2). That standard is met when \"reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.\" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Obtaining a certificate of appealability \"does not require a showing that the appeal will succeed,\" and \"a court of appeals should not decline the application ... merely because it believes the applicant will not demonstrate an entitlement to relief.\" Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The decision under review here is the single-judge order in which the Court of Appeals denied Welch a certificate of appealability. Under the standard described above, that order determined not only that Welch had failed to show any entitlement to relief but also that reasonable jurists would consider that conclusion to be beyond all debate. See Slack, supra, at 484, 120 S.Ct. 1595. The narrow question here is whether the Court of Appeals erred in making that determination. That narrow question, however, implicates a broader legal issue: whether Johnson is a substantive decision with retroactive effect in cases (like Welch's) on collateral review. If so, then on the present record reasonable jurists could at least debate whether Welch should obtain relief in his collateral challenge to his sentence. On these premises, the Court now proceeds to decide whether Johnson is retroactive. B The normal framework for determining whether a new rule applies to cases on collateral review stems from" }, { "docid": "15107164", "title": "", "text": "Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny William Cooper, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(d)(3) motion seeking relief from the district court’s order denying Cooper’s 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Cooper has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED" }, { "docid": "17393629", "title": "", "text": "gave rise to a “constitutional issue eoncern[ing] greater loss of liberty when he did not commit a prior crime of violence.” Jan. 1, 2009 Mot. for a COA, at 2. On January 13, 2009, the Supreme Court decided Chambers, holding that Illinois’s crime of failure to report for penal confinement fell outside the scope of the ACCA’s “violent felony” definition because the offense did not have “as an element the use, attempted use, or threatened use of physical force against the person of another.” 129 S.Ct. at 691. Mr. Shipp contends he is entitled to a reduction in his sentence pursuant to Chambers. II. We must first determine whether we have authority to review the issues raised by petitioner. Title 28 U.S.C. § 2253 governs our review of a district court’s denial of a habeas petition. Under § 2253, we must grant a COA to a habeas petitioner before he may proceed in our court. A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first seek and obtain a COA from a circuit justice or judge.... 28 U.S.C. § 2253(c) permits the issuance of a COA only [upon] a ‘substantial showing of the denial of a constitutional right.’ ”); see also Adams v. LeMaster, 223 F.3d 1177, 1179 (10th Cir.2000) (“[W]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a [COA] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000))). The COA we previously issued is confined to" }, { "docid": "16435187", "title": "", "text": "post-AEDPA law governs the right to appeal. Id. Kunkle filed a notice of appeal in the instant case on November 1, 2002. Therefore, the AEDPA amended version of 28 U.S.C. § 2253 controls Kunkle’s right to appeal. Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first obtain a COA from a circuit judge. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Until a COA has been issued, a federal appeals court lacks jurisdiction to rule on the merits of a habeas appeal. Miller-El, 123 S.Ct. at 1039. To obtain a COA, the petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. 2253(c)(2). To make such a showing, the petitioner must demonstrate “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack, 529 U.S. at 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). The question of whether a COA should issue is a threshold inquiry that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El, 123 S.Ct. at 1039. A full consideration of the merits is not required, nor permitted, by § 2253(c). Id. The fact that a COA should issue does not mean that the petitioner will be entitled to habe-as relief because the “question is the de-batability of the underlying constitutional claim, not the resolution of that debate.” Id. at 1042. Under pre-AEDPA standards of review, this court will review the legal conclusions of the district court de novo and the state court’s findings of fact for clear error. See Soffar v. Cockrell, 300 F.3d 588, 592 (5th Cir.2002) (en banc). This court must accord a presumption of correctness to all findings of fact if they are supported by the record. Id.; see 28 U.S.C. § 2254(d)" }, { "docid": "22276151", "title": "", "text": "has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has explained that this means the petitioner must show “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983)); accord Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). The certificate of appealability requirement is to be administered at the threshold of the appeal, and deciding whether to issue one neither requires nor permits full consideration of the factual and legal merits of the claims, Miller-El at 336, 123 S.Ct. at 1039, because “[t]he question is the debatability of the underlying-constitutional claim, not the resolution of that debate,” id. at 342, 123 S.Ct. at 1042. That means a petitioner is not required to demonstrate entitlement to appellate relief in order to be given an opportunity to pursue it. Still, the certificate of appealability requirement is not a toothless one, and it should be applied with its purpose in mind, which is to separate out those appeals that deserve more careful attention from the ones that do not. More than the absence of frivolity or the presence of good faith is required for a petitioner to clear this hurdle. Id. at 335-38, 123 S.Ct. at 1039-40. Of particular relevance to the three cases we have before us, each of which involves Rule 60(b) procedural issues in addition to merits issues, is the Slack decision. In that case the district court had denied the habeas petition on procedural grounds without reaching the underlying constitutional claim. Slack, 529 U.S. at 484, 120 S.Ct. at 1604. The Supreme Court held that in those circumstances a certificate of appealability should issue only if the petitioner makes both a substantial showing" }, { "docid": "21875451", "title": "", "text": "AEDPA, a petitioner must obtain a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Where the district court has denied claims on procedural grounds, a COA should issue only if it is demonstrated that “jurists of reason would find it debatable whether the petition states a valid claim of a denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]ecause" }, { "docid": "1635855", "title": "", "text": "were affirmed on direct appeal by the Texas Court of Criminal Appeals (CCA). Ward v. State, No. AP-75750, 2010 WL 454980, at *1 (Tex. Crim.App. Feb. 10, 2010). While his direct appeal was pending, Ward sought state habeas relief. The state trial court issued a report and findings recommending denial of habeas relief without an evidentiary hearing. Ex parte Ward, No. WR-70651-02, 2010 WL 3910075, at *1 (Tex.Crim. App. Oct. 6, 2010). The CCA adopted the trial,-judge’s findings and conclusions in part, and denied Ward’s habeas petition in an unpublished decision. Id. One year later, Ward filed the instant federal habeas corpus petition in federal district court. Ward asserted five federal claims for habeas relief. The district court denied his petition in its entirety and denied his request for a certificate of appeal-ability. Ward now seeks our permission to appeal three of the five claims that the district court rejected. II. JURISDICTION AND STANDARD OF REVIEW To appeal the district court’s denial of his habeas petition, Ward must first obtain a COA pursuant to 28 U.S.C. § 2253(c)(1). See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Because the district court did not grant a COA on any of Ward’s claims, we have jurisdiction at this juncture only to consider whether a COA should issue, and not the ultimate merits of his claims. E.g., 28 U.S.C. § 2253(c); Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029. A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists. could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Specifically, “the petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Feldman v. Thaler, 695 F.3d 372, 377 (5th Cir.2012) (alteration omitted) (quoting Slack v. McDaniel, 529 U.S." }, { "docid": "10202291", "title": "", "text": "PER CURIAM: Charles Hensley Mitchell, II, Texas prisoner # 1851936, moves for a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, which challenged his conviction of aggravated assault with a deadly weapon. He also seeks a COA to appeal the district court’s postjudgment denials of his motion for an evidentiary hearing and his motion to alter or amend the judgment under Federal Rules of Civil Procedure 59(e). The district court denied a COA when it denied Mitchell’s § 2254 petition, but it did not address the need for a COA in connection with the post-judgment rulings. To obtain a COA, a § 2254 petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This means that for Mitchell’s claims of prosecutorial misconduct and ineffective assistance of appellate counsel, which the district court denied on the merits, Mitchell must “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). He fails to make such a showing. Mitchell also challenges the district court’s finding that he procedurally defaulted his claim that the state trial court’s refusal to give the jury an instruction on self-defense violated due process, but he fails to show “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Also, Mitchell fails to show that reasonable jurists could debate whether, or agree that, his challenge to the denial of his motion for partial summary judgment is “adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). Mitchell fails to brief, and thus waived, his claims of ineffective assistance of trial counsel. Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999). With respect to these claims, we DENY a COA. A COA is required to" }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "9442958", "title": "", "text": "appeals first issues a COA. 28 U.S.C. § 2253(c)(1) (2004); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a “jurisdictional prerequisite” without which “federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners”); Neville v. Dretke, 423 F.3d 474, 478 (5th Cir.2005). In determining whether to grant a petitioner’s request for a COA, the Supreme Court has instructed that a “court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack v. McDaniel, 529 U.S. 473, 481, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA mil be granted “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2004). In order to meet this standard, Pippin must demonstrate that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. Although the issuance of a COA “must not be pro forma or a matter of course,” the petitioner satisfies the burden under § 2253(c) by “demonstrating] that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. at 337-38, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Finally, any doubt as" }, { "docid": "14010033", "title": "", "text": "denied. II To receive a COA, Cardenas must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court rejects a claim on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In capital cases, doubts about whether the petitioner has met the standard must be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). When a petition is dismissed on procedural grounds, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). At the COA stage, a court should “limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 481, 120 S.Ct. 1595). We do not fully consider “the factual or legal bases adduced in support of the claims,” and a petitioner need not show that an appeal will succeed in order to be entitled to a COA. Id. at 336-37, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 120 S.Ct. 1595. The district court should evaluate the habeas petition to see if the state court’s determination “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it “resulted in a decision that was based on an unreasonable determination of the facts in light" }, { "docid": "22880481", "title": "", "text": "EDITH H. JONES, Circuit Judge: Bruce Wayne Houser, Texas prisoner # 460890, moves for a certificate of appeal-ability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust administrative remedies and as procedurally barred. In that petition, Houser alleged due process violations in connection with prison disciplinary proceeding # 20020003898. Houser has demonstrated that reasonable jurists could debate whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000). However, he fails to establish that reasonable jurists could debate whether he has claimed a valid deprivation of his constitutional rights. See id. COA IS DENIED. The district court found that Houser failed to exhaust his state remedies because he had not filed his Step 1 grievance in a timely manner and, further, that he had failed to file a Step 2 grievance. Both of these findings are rendered questionable by the record, which indicates that Houser’s Step 1 grievance was received on the first working day beyond the fifteen-day period allotted for filing grievances and, per the Offender Grievance Operations Manual, was therefore timely. Also, contrary to the district court’s finding, the record contains a copy of Houser’s Step 2 grievance and the response issued by prison authorities. The district court’s determination of failure to exhaust is at best suspect. However, for a COA to issue, Houser must prove not only that reasonable jurists could debate whether the district court was correct in its procedural ruling, but also that reasonable jurists could find it debatable that the petition states a valid claim of the denial of a constitutional right. 28 U.S.C. § 2253(c); Slack, 529 at 484, 120 S.Ct. at 1603-04. This coequal portion of the appealability test “gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying claims.” Slack, id. Accordingly, we must consider whether “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Performing the" }, { "docid": "11683530", "title": "", "text": "This case arises on appeal from the United States District Court for the Southern District of Texas, Houston Division, Judge Ewing Werlein, Jr. presiding. The State moved for summary judgment. On March 31, 2003, the district court granted the State’s motion for summary judgment denying Smith relief without an evidentiary hearing and dismissed the writ petition in an unpublished decision. Smith v. Cockrell, No. H-00-1771 (S.D.Tex. filed March 31, 2003). The district court also denied Smith’s COA request sua sponte. On September 22, 2003, Smith timely filed his appeal, requesting a COA from this court. Standard of review Because Smith’s federal petition for habeas review was filed on May 30, 2000, we review it under the standards articulated in the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2254. To obtain a COA, the petitioner must make a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, the petitioner must demonstrate “that reasonable jurists could debate whether [] the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). In determining whether to grant a COA, our inquiry is limited to a threshold examination that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A full consideration of the merits is not required, nor permitted, by § 2253(c)(2). Id. The fact that a COA should issue does not mean the petitioner will be entitled to ultimate relief, rather “the question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. Accordingly, we must be mindful that “a claim can be debatable even though every jurist of reason might agree, after the COA" }, { "docid": "23197595", "title": "", "text": "and the State’s summary-judgment motion was denied as moot. See Foster v. Dretke, No. SA-02-CA-301-RF, 2005 U.S. Dist. LEXIS 13862 (S.D. Tex. 3 Mar. 2005). Each side appealed. To do so, Foster requested a COA from our court on two claims. Foster, 2006 WL 616980, addresses the denial of that request. II. Review of this 28 U.S.C. § 2254 habeas proceeding is subject to the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA). See, e.g., Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Before addressing the conditional habeas relief granted by the district court, we consider the belated COA request for a stand-alone actual-innocence claim. A. Under AEDPA, Foster may not appeal the denial of habeas relief unless he obtains a COA from either the district, or this, court. 28 U.S.C. § 2253(c); Fed. R.App. P. 22(b)(1); Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under Federal Rule of Appellate Procedure 22(b)(1), the district court must first decide whether to grant a COA before one can be requested here. As noted, the district court denied a COA for the claim Foster seeks to appeal here. Obtaining a COA requires “a substantial showing of the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2); e.g., Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack, 529 U.S. at 483, 120 S.Ct. 1595. For that requisite showing, an applicant usually must demonstrate “reasonable jurists could debate whether (or, for that matter, agree that) the [federal-habeas] petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further’ ”. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595). Where, as here, the district court’s habeas denial includes a procedural ruling, as opposed to one on the underlying constitutional claim, the showing is expanded. See Hall v. Cain, 216 F.3d 518, 521 (5th Cir.2000). In that situation, the applicant must show" }, { "docid": "16435186", "title": "", "text": "the old case number instead of initiating a new suit. No action was taken on this petition for several years. In July 2001, an order was issued under a new case number indicating that the amended petition would be treated as a new petition, filed in April 1995, and ordering the clerk of court to file a copy of the petition under the new case number. The State filed its response and moved for summary judgment. In September 2002, the federal district court denied habeas relief and refused to issue a COA. Kunkle now seeks a COA from this court. II. Kunkle filed the instant Section 2254 petition in April 1995, before the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). As such, this court must apply pre-ADEPA law in reviewing the district court’s ruling. Slack v. McDaniel, 529 U.S. 473, 480, 120 S.Ct. 1595, 1602, 146 L.Ed.2d 542 (2000). However, where an appeal from a denial of a petition of habeas corpus is commenced after the effective date of the AEDPA, post-AEDPA law governs the right to appeal. Id. Kunkle filed a notice of appeal in the instant case on November 1, 2002. Therefore, the AEDPA amended version of 28 U.S.C. § 2253 controls Kunkle’s right to appeal. Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first obtain a COA from a circuit judge. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Until a COA has been issued, a federal appeals court lacks jurisdiction to rule on the merits of a habeas appeal. Miller-El, 123 S.Ct. at 1039. To obtain a COA, the petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. 2253(c)(2). To make such a showing, the petitioner must demonstrate “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack, 529 U.S. at 484, 120 S.Ct. 1595," }, { "docid": "13139588", "title": "", "text": "only in the event that it found that he actually attacked Vick. The court did not instruct the jury on a law of the parties theory of liability. The jury found Wright guilty, and he was sentenced to death. Wright’s conviction was affirmed on direct appeal to the Texas Court of Criminal Appeals (“TCCA”). Wright v. State, 28 S.W.3d 526 (Tex.Crim.App.2000). He petitioned the state court for a writ of habeas corpus. The state trial judge adopted the State’s proposed findings of fact and conclusions of law in their entirety and recommended that relief be denied. The TCCA adopted the trial court’s findings of fact and conclusions of law and denied relief. Wright petitioned the United States District Court for the Northern District of Texas for a federal writ of habeas corpus. A magistrate judge recommended denying relief on all of Wright’s claims. Wright v. Dretke, 3:01-CV-0472, 2004 WL 438941 (N.D.Tex. Mar.10, 2004). The district court judge adopted the magistrate judge’s recommendation and denied the petition. II We issue a certificate of appealability only when the movant has made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(e)(2). This requires him to “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). At this stage, we are not permitted to give full consideration of the factual or legal bases in support of the claim. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Instead, we merely conduct an overview of the claims and a general assessment of their merits. Id. The movant’s arguments “must be assessed under the deferential standard required by 28 U.S.C. § 2254(d)(1).” Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004); see Miller-El, 537 U.S. at 348-50, 123 S.Ct. 1029 (Scalia, J., concurring) (arguing that a court must consider 28 U.S.C. § 2254(d)’s deferential standard of review when ruling on motion for COA). A federal court may not issue a" }, { "docid": "13109965", "title": "", "text": "Bagwell appealed the denial of the COA on two of his habeas claims to this court. II. STANDARD OF REVIEW Bagwell’s § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). AEDPA requires Bagwell obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000). Hence, “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA will issue only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. More specifically, the petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Likewise, when the district court has rejected a claim on a procedural ground, “the petitioner must also demonstrate that ‘jurists of reason would find it debatable whether the district court was correct in the procedural ruling.’ ” Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir.2003) (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604). The Supreme Court counseled that “a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim[.]” Id. at 331, 123 S.Ct. 1029. Instead, this court should engage in an “overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Ultimately, “[t]o prevail on a petition for writ of habeas corpus, a petitioner must demonstrate that the state" } ]

[ { "docid": "6592140", "title": "", "text": "when all the evidence is viewed in the light most favorable to the nonmoving party. Sweat v. The Miller Brewing Co., 708 F.2d 655 (11th Cir.1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 996-7 (5th Cir.1979), quoting Gross v. Southern Railroad Co., 414 F.2d 292 (5th Cir.1969). Factual disputes preclude summary judgment. The Supreme Court of the United States held, in Celotex Cory. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), In our view the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Id. 477 U.S. at 322, 106 S.Ct. at 2552, at 273. The Court also said, “Rule 56(e) therefore requires that nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing there is a genuine issue for trial.’ ” Celotex Cory., 477 U.S. at p. 324, 106 S.Ct. at p. 2553, at p. 274. The Court is satisfied that no factual dispute remains which precludes summary judgment. In McDonnell Douglas Cory. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court described a typical model that would establish a prima facie case of discriminatory treatment. Plaintiff must show: 1) That he belongs to a racial minority; 2) That he applied and was qualified for a job for which the employer was seeking applicants; 3) That, despite his qualifications, he was rejected; and 4) That, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. The formula is not inflexible but must be applied in light of the specific case under adjudication. Texas Department of Community Affairs v. Burdine," } ]

[ { "docid": "22092938", "title": "", "text": "Title VII case of racially discriminatory refusal to hire. Under McDonnell Douglas the plaintiff, as an initial matter, “must carry the burden of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” 411 U.S. at 802, 93 S.Ct. at 1824. The Maxfield discussion of the elements of a prima facie ADEA discharge case dealt with the question whether the fourth phase required a showing that the complainant had been replaced by a person younger than forty — i.e., a person not within the statutorily protected class. This court rejected such a construction of the ADEA: “we hold that an ADEA plaintiff may establish the fourth element of the McDonnell Douglas test for a prima facie case by showing that s/he was replaced by a person sufficiently younger to permit an inference of age discrimination.” 766 F.2d at 793. What should be noted is that what this court was called on to decide in Maxfield was whether replacement by a person within the protected class could be regarded as tending to establish a prima facie case of discharge contravening the ADEA, and this court’s answer was in the affirmative. What the Max-field court was not called on to decide — or at least was not expressly called on to decide— was whether replacement by someone significantly younger is an indispensable ingredient of a prima facie ADEA discharge case, or whether, in a circumstance in which the discharged plaintiff is not replaced, other evidence can support a prima facie case. In this connection it may be relevant that the Supreme Court in McDonnell Douglas did not require, as the fourth phase of a prima facie race-based-refusal-to-hire case, that the plaintiff establish the hiring of a non-minority person to fill the job for" }, { "docid": "23013956", "title": "", "text": "Title VII and the related proof of intentional discrimination required under Section 1981. I. TITLE VII A. Prima Facie Case of Reverse Discrimination The general standard for establishing a prima facie case in disparate treatment cases under Title VII is set forth in the seminal racial discrimination in hiring case, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973): The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. 411 U.S. at 802, 93 S.Ct. at 1824 (footnote omitted). As the Court noted, this standard provides an analytical framework which should be modified to accommodate different employment discrimination contexts. Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13. Thus, courts have modified the McDonnell Douglas standard to address disparate treatment cases involving all discrimination prohibited by the Act in promotion, firing, compensation or other conditions of employment. Accordingly, the district court in the case at bar adopted a McDonnell Douglas standard modified to address “reverse discrimination” claims under the Act: In reverse discrimination cases, the first prong of the McDonnell Douglas standard has been interpreted to allow a majority plaintiff to establish a prima facie case of intentionally disparate treatment when “background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Parker v. Baltimore and Ohio Railroad, 652 F.2d 1012, 1017 (D.C.Cir.1981). The remaining elements of the test are modified to reflect the requirement that the plaintiff demonstrate he was treated differently than other similarly situated employees who were not members of the protected group. Murray v. Thistledown Racing Club, Inc., 603 F.Supp. at 483. The court determined that Murray’s" }, { "docid": "22826425", "title": "", "text": "relies, provides: It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. The starting point when a Title VII plaintiff alleges disparate individual treatment under facially neutral policies is the Supreme Court’s analysis in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), which, although a case of alleged racial discrimination, applies equally, with appropriate changes in terms, to discrimination because of sex: The complainant in a Title VII trial must carry the initial burden of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. [Footnote omitted.] This extract says nothing about the need to prove discriminatory intent; the evident thought was that proof of the four elements warranted an inference of such intent unless the defendant presented at least some evidence in rebuttal. Applying the McDonnell Douglas test, Chief Judge Clarie concluded, 474 F.Supp. at 863-64, that Dr. Lieberman would make out a prima facie case by proving: the following four elements: (1) she is a woman; (2) she was qualified for tenure; (3) despite her qualifications, she was rejected; and (4) after her rejection the position remained open and the defendants continued to seek or accept applications from persons of her" }, { "docid": "424156", "title": "", "text": "for the finding. Plaintiffs third application, however, reveals that she was a little under 5' tall and weighed a little over 100 lbs. It is irrelevant as plaintiffs size was not an issue. . In McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824, the Supreme Court described the initial burden of proof which a plaintiff must meet in an employment discrimination case: The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. . Approving that selection in the case of this coal mine is in no way intended to disparage the position of beauticians in our society. . The dissent directs us to our recent decision in Davis v. Weidner, 596 F.2d 726 (7th Cir. 1979), which it claims controls this case. In Davis the female plaintiff was not retained as a member of the nontenured faculty at a university. The university had decided to retain only three of five nontenured faculty members and a university committee ranked plaintiff as the fourth best professor of the five. A male was later hired to fill plaintiff’s position. The plaintiff brought a Title VII action. This court, distinguishing International Brotherhood of Teamsters, said that on those facts the plaintiff did not need to show as a part of her prima facie case that she was as qualified as those retained. Id. at 730. The court went on to add if a “ ‘relatively less qualified’ applicant for a job possessed qualifications significantly and obviously inferior to the person actually given the job,” this requirement would be less persuasive. Id. at 730 n. 2. Since, as we said in Davis, the specification of prima facie" }, { "docid": "188529", "title": "", "text": "(1) that the plaintiff has failed to establish a prima facie case of sex discrimination; (2) that, even assuming this initial burden has been discharged, the Company has articulated a legitimate, nondiscriminatory reason for Hayden’s non-selection, i.e., a good-faith, mistaken belief that she was not interested in the machinist position; and (3) that the plaintiff has not proven that the Company’s proffered reason is a pretext. In response, the plaintiff argues that summary judgment should be denied because the Company has not proven the absence of a dispute of material fact. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a case of discriminatory denial of employment, the Supreme Court articulated the elements of a prima facie showing under Title VII. The complainant must show: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applications from persons of complainant’s qualifications. Id. at 802, 93 S.Ct. at 1824. Emphasizing that this standard was not to be rigidly applied, the Court added the following footnote: “The facts necessarily will vary in Title VII cases, and the specification ... of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.” Id. at 802 n.13, 93 S.Ct. at 1824 n.13. Accord, Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 1094 n.6, 67 L.Ed.2d 207 (1981). In our view, Hayden’s claim can best be analyzed as an alleged failure to promote. Heeding the admonition in McDonnell, lower federal courts have formulated a somewhat different standard in failure to promote cases. To establish a prima facie case, a plaintiff must show that (1) she belongs to a protected group; (2) she was qualified for and applied for a promotion; (3) she was considered for and denied the promotion; and (4) other employees of similar qualifications who" }, { "docid": "22908758", "title": "", "text": "be supported with direct evidence, e.g., a defendant’s oral statements demonstrating her discriminatory motivation. See Kendrick, 220 F.3d at 1225. Alternatively, a plaintiff may support her Title VII claim of racial discrimination with indirect or circumstantial evidence. Id. When indirect or circum stantial evidence is the basis of a Title VII claim, we evaluate the evidence under the McDonnell Douglas framework. Id.; McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. 1817. To establish a Title VII racial discrimination claim under McDonnell Douglas, a plaintiff must demonstrate: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. In lieu of demonstrating that the reverse discrimination plaintiff belongs to a racial minority to satisfy the first condition of the McDonnell Douglas prima facie case, she may instead “identify background circumstances that ... [show] that the defendant is one of those unusual employers who discriminate against the majority.” Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1534 (10th Cir.1995). Alternatively, a reverse discrimination plaintiff may satisfy the first prong of McDonnell Douglas by presenting “indirect evidence sufficient to support a reasonable probability, that but for the plaintiffs status the challenged employment decision would have favored the plaintiff.” Notari v. Denver Water Dept., 971 F.2d 585, 590 (10th Cir.1992). If an employee satisfies the four McDonnell Douglas conditions, she has presented a prima facie case of discrimination. The employer must then produce a legitimate, nondiscriminatory justification for the employment action, at which point the employee must provide evidence showing that the employer’s justification is a pretext for discrimination. Even were we to assume Sto-ver’s evidence is sufficient to establish a prima facie case of discrimination under McDonnell Douglas, Stover fails to demonstrate that HUD’s legitimate employment reasons for its actions are pretextual. The only alleged adverse actions Stover established" }, { "docid": "22092937", "title": "", "text": "protected class, i.e. at least 40 years of age, 29 U.S.C. § 631(a), (2) is qualified for the position, (3) suffered an adverse employment decision, and (4) in the ease of a demotion or discharge, was replaced by a sufficiently younger person to create an inference of age discrimination.” In support of this four-phase formulation of a prima facie ADEA discharge or demotion case footnote 5 cites Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). The citation is an apposite one: in Chipollini, an ADEA discharge case, this court set forth essentially the same four-phase formulation. Chipollini, in turn, derived the four-phase formulation from Maxfield v. Sinclair Intern., 766 F.2d 788, 793 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). In Maxfield this court adapted to ADEA discharge eases the Supreme Court’s four-phase formulation in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), of a prima facie Title VII case of racially discriminatory refusal to hire. Under McDonnell Douglas the plaintiff, as an initial matter, “must carry the burden of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” 411 U.S. at 802, 93 S.Ct. at 1824. The Maxfield discussion of the elements of a prima facie ADEA discharge case dealt with the question whether the fourth phase required a showing that the complainant had been replaced by a person younger than forty — i.e., a person not within the statutorily protected class. This court rejected such a construction of the ADEA: “we hold that an ADEA plaintiff may establish the fourth element of the McDonnell Douglas test for a prima facie" }, { "docid": "23631062", "title": "", "text": "operation, would suffice under the controlling standard to support as a reasonable probability the inference that but for the plaintiff’s race he would have been promoted. Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 242 (4th Cir.1982). Without such evidence, the claimant must resort to the McDonnell Douglas presumption with all of its ensuing complexities. Holmes presented no direct or indirect evidence of discrimination. Under McDonnell Douglas, to establish his prima facie case of employment discrimination, Holmes must show (i) that he belongs to a racial minority; (ii) that he applied and was qualified for the job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of plaintiff’s qualifications. In establishing this formulation, the Supreme Court noted, “The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from the [plaintiff] is not necessarily applicable in every respect in differing factual situations.” 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. The underlying factual situation in McDonnell Douglas is quite different from the present case. In McDonnell Douglas, proof of a prima facie case was not seriously contested. There the plaintiff applied for a mechanic’s position for which he was qualified and was rejected. After his rejection, the position remained open and this became the fourth McDonnell Douglas requirement in the prima facie proof scheme. The Supreme Court explained in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n. 44, 97 S.Ct. 1843, 1866 n. 44, 52 L.Ed.2d 396 (1977), that while the McDonnell Douglas four-prong scheme does not require direct proof of discrimination, it does require that the alleged discriminatee at least show that his rejection “did not result from the two most common legitimate reasons on which an employer might rely to reject a job application: an absence or relative lack of qualifications or absence of a vacancy in the job sought.” Therefore, in a factual situation in which persons" }, { "docid": "7772946", "title": "", "text": "analysis. Although Lautermilch’s complaint never mentions Title VII, “[t]o prove a violation of the equal protection clause under § 1983, [a plaintiff] must prove the same elements as are required to establish a disparate treatment claim under Title VII, i.e., under the McDonnell Douglas/Burdine framework.” Jachyra v. City of Southfield, No. 95-1009, 1996 WL 520795, at *3 (6th Cir. September 12, 1996) (citing Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir.1988)). Under the McDonnell Douglas/Burdine framework, [t]he complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of ... discrimination. This may be done by showing (i) that he belongs to a [protected] minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once a complainant fulfills his initial obligation, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. Id. Once the employer articulates some legitimate, nondiscriminatory reason for the action, the complainant has an opportunity to show that the stated reason for rejection was in fact pretext. Id. at 804, 93 S.Ct. 1817. Because Lautermilch has not provided any evidence that he was replaced by someone outside his protected class (one way to fulfill the fourth prong of McDonnell Douglas), he has failed to establish a prima facie case under the four prongs of McDonnell Douglas. Alternatively, Lautermilch seeks to establish his prima facie sex discrimination case through direct evidence of discrimination. In Laderach v. U-Haul of Northwestern Ohio, 207 F.3d 825 (6th Cir.2000), this court held that a plaintiff may establish a prima facie case of sex discrimination through direct evidence of discrimination. Id. at 829. Direct evidence is “that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor" }, { "docid": "1439316", "title": "", "text": "Advance Notice of Removal, infra, at 2. . Plaintiff relies upon the prima facie test formulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Green test, however, was applied in an action where defendant alleged racial discrimination in the employer’s failure to rehire him. The initial burden to establish a prima facie case of discrimination under these circumstances is met when the complainant shows: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualification, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.13 (The Green court in its footnote 13 recognized that as the facts vary in Title VII cases, so may the requirements of the prima facie burden. Green, supra, 411 U.S. at 802, 93 S.Ct. at 1824.) Even though plaintiff relies on the Green test, he misrepresents an important element. Plaintiff substitutes words of his own choosing and would prefer the standard to read: that although a member of a racial minority was qualified for the job for which the employer was seeking applicants “he was rejected for the position in favor of less qualified persons.” See Plaintiffs Reply at 5 (June 3, 1977). Since I find an appropriate prima facie test for the failure to promote in Pettit v. United States, supra, plaintiffs own formulation is rejected. . Plaintiff makes the argument that “if the person selected for the position did not qualify for the position or suffered from the lack of some other essential requirement for qualification, it matters not that the selectee was also a member of a racial minority. As to the non-selected best qualified applicant the disparity in the standards applied for the determination of ‘best qualified’ was disparate treatment and thus discriminatory.” Plaintiff’s Reply at 5 (June 3, 1977). Plaintiffs argument, taken as a whole, does not assert that it is a discriminatory practice against a racial" }, { "docid": "3598483", "title": "", "text": "and even the evidence that Lipscomb and Bost were friends was minimal. The trial judge, in granting Defendant’s Motion to Dismiss pursuant to Fed.R.Civ.P. 41(b), commented on the theory advanced by Plaintiff and stated that although hiring decisions should always be made objectively, they are not always conducted in that manner. However, the judge also observed that a race discrimination case is not made out by showing that friendship or politics may have entered into a promotion decision. The language of the applicable statute, 42 U.S.C. § 2000e-2, specifically limits its coverage to unlawful employment practices occurring because of an individual’s “race, color, religion, sex, or national origin.” In a disparate treatment case, such as this, a plaintiff must prove intentional racial discrimination. A prima facie case of race discrimination under Title VII requires showing a connection between race and the adverse employment decision. As the Supreme Court noted in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S.Ct. 1818, 1824, 36 L.Ed.2d 668 (1973), a private plaintiff in a Title VII race discrimination in employment case may meet his burden of establishing a prima facie case of discrimination by showing the following: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. The fourth prong of the test set forth in McDonnell Douglas was discussed in the recent case of Holmes v. Bevilacqua, 794 F.2d 142 (4th Cir.1986). The Holmes court concluded that the four prong scheme applies to situations in which several qualified employees apply for one available promotion and no vacancy exists once the promotion occurs, and with regard to the fourth prong, stated: [U]nder the fourth prong, since the plaintiff cannot prove that the vacancy remained open after he was rejected, he must present some other evidence that his race was a factor considered by his employer in not" }, { "docid": "10471687", "title": "", "text": "2943, 2949, 57 L.Ed.2d 957 (1978); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In McDonnell Douglas, the Court said: This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applications from persons of complainant’s qualifications. Id. 411 U.S. at 802, 93 S.Ct. at 1824. With respect to claims of retaliation, the relevant statute, Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), provides in pertinent part: It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, ... because he has opposed any practice made an unlawful employment practice by this subchapter or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. The McDonnell Douglas shifting of burdens similarly applies in cases of alleged retaliation. Jackson v. Pepsi-Cola, Dr. Pepper Bottling Co., 783 F.2d 50, (6th Cir.), cert. denied — U.S.-, 106 S.Ct. 3298, 92 L.Ed.2d 712 (1986). However, the framework of a prima facie case differs somewhat when the plaintiff alleges retaliation. The plaintiff may establish a prima facie case by showing: (1) he engaged in a protected activity; (2) his employer subsequently subjected him to adverse employment action; and (3) a causal link existed between the two events. Yates v. AVCO Corporation, 819 F.2d 630, 637 (6th Cir. 1987); Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir.1982), cited with approval in Yates, supra. Again, once plaintiff establishes a prima facie case, defendant assumes the burden of articulating a legitimate, non-discriminatory reason for the adverse action, and then plaintiff may rebut this by showing the articulated reason is merely pretextual. This case also involves a claim of constructive discharge in connection with the alleged Title VII violations. “A" }, { "docid": "10003866", "title": "", "text": "at 802-04, 93 S.Ct. at 1824-25. The McDonnell Douglas Court stated that in a failure-to-hire case, the Title VII plaintiff may establish a prima facie case of racial discrimination “by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of [plaintiffs] qualifications.” Id. at 802, 93 S.Ct. at 1824. This test was recently reaffirmed in Cooper v. Federal Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 2799, 81 L.Ed.2d 718 (1984). A slightly different test has been applied in the discharge setting: The three elements necessary to establish a prima facie case of discriminatory discharge were specifically enumerated by this court in Potter v. Goodwill Industries, 518 F.2d 864 (6th Cir.1975). A plaintiff must show “[1] that he is a member of a class entitled to the protection of the Civil Rights Act, [2] that he was discharged without valid cause, and [3] that the employer continued to solicit applications for the vacant position.” Id. at 865. Failure to prove any one of these elements by a preponderance of the evidences mandates a dismissal of the plaintiffs suit. Morvay v. Maghielse Tool & Die Co., 708 F.2d 229, 233 (6th Cir.), cert. denied, 464 U.S. 1011, 104 S.Ct. 534, 78 L.Ed.2d 715 (1983). Case law subsequent to McDonnell Douglas has emphasized that the prima facie method “was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). See also United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). “The burden of establishing a prima facie case of disparate treatment is not onerous.” Burdine," }, { "docid": "14291024", "title": "", "text": "treatment. In considering defendant’s motion, we begin our analysis with reference to the “intermediate evidentiary burdens” that the parties shoulder and which are designed to bring “litigants and the court expeditiously and fairly to [the] ultimate question.” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). The shifting, flexible burdens described in McDonnell Douglas requires a Title VII litigant to first prove its prima facie case. He may do so by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that despite his qualifications he was rejected; and (iv) that, after his rejection the position remained open and the employer continued to seek applications from persons of complainant’s qualifications. 411 U.S. at 802, 93 S.Ct. at 1824. Once plaintiff has met this burden, defendant must articulate some legitimate, nondiscriminatory reason for plaintiff’s rejection. In order to ultimately prevail, plaintiff must then submit evidence that defendant’s articulated reason for the discharge was pretextual. 411 U.S. at 804, 93 S.Ct. 1817. In a suit challenging the propriety of a firing, plaintiff’s burden in proving its prima facie case differs slightly from the standard articulated above. Plaintiff, in such a case, must show that he is a member of the protected class; that he was qualified for the job that he held; that he satisfied the normal requirements of the job; and, that he was the object of adverse action. See Whack v. Peabody & Wind Engineering Co., 452 F.Supp. 1369 (E.D.Pa.1978) , aff’d mem., 595 F.2d 190 (3d Cir. 1979) . Importantly, the order of proof mandated by McDonnell Douglas does not require that evidence be produced in a compartmentalized form. Thus, plaintiff’s evidence relevant to the issue of pretext can be as part of plaintiff’s initial evidence which seeks to establish a prima facie case. Worthy v. United States Steel Corp., 616 F.2d 698, 701 (3d Cir. 1980). Likewise, defendant’s evidence may be properly employed to both undermine plaintiff’s ability to establish a prima" }, { "docid": "2128301", "title": "", "text": "personnel records and destroyed.” In the final administrative decision in the case, issued on April 10, 1978, the Secretary of the Navy concurred in the findings, decision, and corrective action recommended by the Complaints Examiner. The Secretary declined, however, to award Smith attorney’s fees as the prevailing party in a Title VII action. C. Proceedings in the District Court Dissatisfied with the administrative resolution, including the denial of attorney’s fees, appellant brought suit in the District Court. Once again he alleged reprisal and discrimination in connection with both his NAVSEA and his NASA applications. He also presented a claim that he was denied training courses because of his race and because of his involvement with the EEO program. At the conclusion of a trial de novo the District Court found as a fact that Smith had not been denied training courses because of either racial discrimination or illegal reprisal. The court also held that Smith’s complaint regarding his NAVSEA and NASA applications had failed to state even a prima facie case of employment discrimination cognizable under Title VII. It reached this conclusion by applying the four-part test elaborated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Under that standard a plaintiff establishes a prima facie case of employment discrimination by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. * * * Adapting the McDonnell Douglas test to the facts of this case, the District Court held that “plaintiff has failed to establish a prima facie case of race discrimination, for the record indicates that even if his supervisory appraisals were free from any improper consideration of his EEO activities, plaintiff would not have been among the best qualified for the positions sought.” In concluding that Smith was not" }, { "docid": "8025587", "title": "", "text": "than similarly-situated whites.” Martin v. Citibank, N.A., 762 F.2d 212, 217 (2d Cir.1985). By establishing a prima facie case, plaintiff “raises an inference of discrimination,” since the existence of facts establishing the prima facie case, unless otherwise explained, indicate that more likely than not some employment decision was “based on the consideration of impermissible factors.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978). In a typical case in which the plaintiff alleges that she was denied a position because of her race or ethnicity, a prima facie case of discrimination may be established by showing (i) that [she] belongs to a racial [or ethnic] minority; (ii) that [she] applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite [her] qualifications, [she] was rejected; and (iv) that, after [her] rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824 (footnote omitted). In this case it is uncontested that plaintiff is a member of a protected group and that she was rejected for two positions for which she applied within the Division. The record amply supports the conclusion that plaintiff was well qualified to fill both positions available with defendant, and defendant concedes this point. More problematical in cases like the one at bar, in which an employer’s hiring selection is made from a pool of qualified candidates, is the application of the fourth element of the McDonnell Douglas prima facie test, since the decision to hire the successful candidate is made simultaneously with the decision to reject the plaintiff. Obviously, in such circumstances plaintiff cannot show that the position in question “remained open” and that the employer “continued to seek applicants” with qualifications similar to those of the plaintiff after the plaintiffs rejection. See 2 A. Larson & L. Larson, Employment Discrimination § 50.31(f) (1987). The Supreme Court noted in McDonnell Douglas that because “[t]he facts necessarily will vary in Title VII cases,” the elements of the prima" }, { "docid": "23102496", "title": "", "text": "Third, if the defendant carries this burden, the plaintiff has an opportunity to prove that the legitimate reasons the defendant offered were merely a pretext for discrimination. Id. at 802, 93 S.Ct. at 1824. Because the district court in this case found that Notari failed to state a prima facie case, we turn our attention to the law that has developed around that aspect of the Title VII disparate treatment claim. A plaintiff must establish a prima facie case of racial discrimination and under McDonnell Douglas, may do so by demonstrating the following: “(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” Id. at 802, 93 S.Ct. at 1824. The Court noted, however, that “[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie case proof required from respondent is not necessarily applicable in every respect in differing factual situations.” Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13. Thus, for example, the Court modified the first element of the prima facie case in gender discrimination cases so that a female plaintiff must only show that she is a woman. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 n. 6, 101 S.Ct. 1089, 1093 n. 6, 67 L.Ed.2d 207 (1981). Similarly, this court has recognized that in a promotion case, such as this one, a plaintiff fulfills the fourth element when he shows that the position was filled by another. Mortensen v. Callaway, 672 F.2d 822 (10th Cir.1982). Although it is clear that Title VII’s protection is not limited to those individuals who are members of historically or socially disfavored groups, Livingston, 802 F.2d at 1252 (citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280, 96 S.Ct. 2574, 2578, 49 L.Ed.2d 493 (1976)), the Supreme Court has not addressed" }, { "docid": "22979787", "title": "", "text": "proof of relative qualifications. In McDonnell Douglas, the Supreme Court stated that a plaintiff may establish a prima facie case for a Title VII claim by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. This standard, however, was tailored to the particular ease at hand — a case in which there was no showing the defendant employer had hired anyone for the plaintiffs coveted position. See Green v. McDonnell-Douglas Corp., 299 F.Supp. 1100 (E.D.Mo.1969) (reciting the facts of the case but including no mention of a successful applicant); Green v. McDonnell-Douglas Corp., 318 F.Supp. 846 (E.D.Mo.1970) (same). In Crawford v. Western Elec. Co., 614 F.2d 1300, 1315 (5th Cir.1980), therefore, we added an alternative to the fourth element of the McDonnellr-Douglas standard to address a situation in which the plaintiff “loses out” to another applicant in competition for the coveted promotion: [Pjlaintiffs may establish a prima facie violation by showing that they are members of a group protected by title VII, that they sought and were qualified for positions that [the defendant employer] was attempting to fill, that despite their qualifications they were rejected, and that after their rejection Western Electric either continued to attempt to fill the positions or in fact filled the positions with [persons outside the plaintiffs protected class]. (citing McDonnell-Douglas) (emphasis added). This alternative was necessary because “the fourth McDonnellr-Douglas criterion, that the position remained open and that the employer continued to seek applicants after the plaintiffs rejection, certainly should not be required when the plaintiffs rejection is simultaneous with the hiring or promotion of the person chosen to fill the position.” Simon v. Honeywell Inc., 642 F.2d 754, 755 n. 4 (5th Cir.1981) (citing Burdine, 450 U.S. at 254 n. 6, 101 S.Ct. at 1094 n. 6)." }, { "docid": "14054492", "title": "", "text": "particular fact it has been assumed that ... he impliedly made a finding consistent with his general finding.”); Clinkenbeard v. Central Southwest Oil Corp., 526 F.2d 649 (5th Cir.1976) (implied finding of agency relationship in general finding of agent’s fiduciary duty). A. Prima Facie Case The requisites for a prima facie case in a Title VII suit are flexible. Direct proof of discriminatory intent is not necessary. Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977) (“Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.”). McDonnell Douglas listed four elements that a plaintiff must establish: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants. 411 U.S. at 802, 93 S.Ct. at 1824. McDonnell Douglas was a hiring case, but variants of the four factors will apply in the context of referrals at unequal wage rates. Id. n. 13, 93 S.Ct. at 1824 n. 13 (“The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not applicable in every respect in different factual situations.”). In cases of the present type, the plaintiff can state a prima facie case if he shows that he is the member of a minority, that he was properly on the union’s out-of-work list, and that he was not referred at the same wage rate as were white trainees. Cf. Lincoln v. Board of Regents of the University System of Georgia, 697 F.2d 928, 937 (11th Cir.), cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983) (modifying elements of a prima facie case to fit wrongful discharge). 1. John Sharit The district court grounded its finding of intentional discrimination, and thus its finding of a prima facie" }, { "docid": "22961956", "title": "", "text": "93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973). See also Furnco Const. Corp. v. Waters, 438 U.S. 567, 572-73, 98 S.Ct. 2943, 2947, 57 L.Ed.2d 957 (1978). In McDonnell Douglas the Supreme Court set forth the four elements necessary to establish a prima facie case of race discrimination under Title VII; the plaintiff must show: 1. that he belongs to a racial minority; 2. that he applied and was qualified for a job for which the employer was seeking applicants; 3. that, despite his qualifications, he was rejected; and 4. that, after his rejection, the position remained open and the employer continued to seek applications from persons of complainant’s qualifications. 411 U.S. at 802, 93 S.Ct. at 1824 (footnote omitted). The Court cautioned that these four elements might not be necessarily applicable in every respect in all Title VII cases. Id at 802 n.13, 93 S.Ct. at 1824. The courts of appeals have consistently approved the application of the McDonnell Douglas test to charges of discrimination in the academic context. The Fourth Circuit adopted the McDonnell Douglas elements and applied them to sex discrimination in the academic context. Smith v. University of North Carolina, 632 F.2d 316 (4th Cir. 1980). In Smith, the Fourth Circuit described the elements of a prima facie case of Title VII discrimination by an institution of higher learning; it said that the plaintiff must show: 1. that she is a member of a class protected by Title VII; 2. that she was qualified for the position or rank sought; 3. that she was denied promotion or reappointment; 4. that in cases of reappointment (or tenure) others (i. e., males) with similar qualifications achieved the rank or position. 632 F.2d at 340. We agree that these are the applicable elements in such cases. The test set forth above is not an exclusive one. Plaintiffs may under some circumstances establish a prima facie showing of unlawful discrimination in Title VII cases without satisfying the four specific elements of McDonnell Douglas or Smith. The Supreme Court has expressly rejected the argument that meeting the specific McDonnell Douglas requirements" } ]

[ { "docid": "11875560", "title": "", "text": "Marzett premises, so that the evidence should be ruled inadmissible under the “poisoned tree” doctrine. The government denies that there was any unreasonable search and asserts that in any event the appellant Fullbright had no standing to object, being without proprietary interest in the Marzett premises. The definition of an “aggrieved” person is not as limited as appellee would imply. A narrow view of Rule 41(e) Federal Rules of Criminal Procedure has been rejected and standing has been extended under varying circumstances to those whose rights of privacy have been invaded by searches or seizures directed against them. Under the circumstances of this case the appellant had standing to question the legality of any search of the Marzett premises. When the investigators made their initial observation, the door to the shed was open and its light was sufficient to reveal what was going on. The extent of the investigators’ action at the time was to look. And the use of binoculars did not change the character or admissibility of the evidence or information gained. It has been consistently held that open fields are not protected by the Fourth Amendment. The investigator here did not make a “search” of any papers, house, persons, or effects in the usual sense but rather made distant observations of a house and shed the direct search of which we shall assume would have been constitutionally prohibited without a warrant as being within the “curtilage”. If the investigators had physically breached the curtilage there would be little doubt that any observations made therein would have been proscribed. But observations from outside the curtilage of activities within are not generally interdicted by the Constitution. Indeed, to so hold might require passing officers to close their eyes to the commission of felonies on front door steps. The observations from the field sustained in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898, supra, penetrated the immediate vicinity of the home where the plaintiff in error lived. By this we do not mean to say that surveillance from outside a curtilage under no circumstances could" } ]

[ { "docid": "2919355", "title": "", "text": "arresting officers at the time of his arrest. 6. The testimony of Special Investigator Robert E. Griffith, the chief prosecution witness, was false. The appellant testified to the contents of a letter dated October 4,1968, from the United States Attorney to the United States Commissioner, authorizing dismisal of the complaint. The record shows that thereafter, on December 12, 1968, the indictment was filed. The prior dismissal of the complaint by the United States Commissioner, however, did not bar the subsequent indictment and conviction on the same charges. See United States ex rel. Rutz v. Levy, 1925, 268 U.S. 390, 45 S.Ct. 516, 69 L.Ed. 1010; Draper v. Rhay, D.C.E.D.Wash. 1964, 242 F.Supp. 829, affirmed 9th Cir. 1966, 358 F.2d 304, cert. denied 384 U.S. 993, 86 S.Ct. 1901, 16 L.Ed.2d 1009. Appellant Grimes has contended that he was denied his right to a speedy trial. The record shows that no motion for speedy trial was filed in his behalf; and that he was first tried on April 21, 1969, some four months after indictment. That trial resulted in a mistrial, whereupon the appellant was tried a second time and convicted on May 9, 1969. Not having moved for a speedier trial, the appellant can not now complain of the delay. Harlow v. United States, 5th Cir. 1962, 301 F.2d 361, cert. denied 371 U.S. 814, 83 S.Ct. 25, 9 L.Ed.2d 56. Moreover, the delay was not excessive and appellant has not suggested any harm resulting therefrom. Appellant Grimes has not supplied the name of the witness whom his counsel allegedly failed to subpoena. After the trial, the appellant hired a second attorney who stated in his motion for leave to withdraw, that the alleged witness, still not named, refused to meet with the attorney to discuss the case. Our perusal of the record has convinced us beyond doubt that the appellant was adequately represented by his privately-retained counsel at the trial level. Appellant does not specify which evidence he contends was obtained by an unlawful search and seizure. At the trial, Special Investigator Griffith testified that through binoculars, he observed" }, { "docid": "11187365", "title": "", "text": "6 to 8 feet behind him, Trujillo dropped from his left hand a pink packet and a small foil packet. Each fell to the ground between the sidewalk and the curb. Officer Torrez called out “George” to the appellant and officer Proffer picked up the two packets which he recognized as the usual packaging for heroin and said to Torrez, “I have the stuff.” Torrez then arrested Trujillo who denied that he had any heroin and that he had thrown any away. A motion to suppress was overruled. At the trial the two packets were received in evidence over objection and were shown to contain heroin. It is not a search to observe that which occurs openly in a public place and which is fully disclosed to visual observation. There was no seizure in disregard of any lawful right when the officers retrieved and examined the packets which had been dropped in a public place. As the evidence was obtained prior to and independent of arrest, the arguments of counsel as to the legality of the arrest merit no consideration. Affirmed. . Petteway v. United States, 4 Cir., 261 F.2d 53, 54. Cf. United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 71 L.Ed. 1202. . Lee v. United States, 95 U.S.App.D.C. 156, 221 F.2d 29, 30. Cf. Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 68 L.Ed. 898." }, { "docid": "897353", "title": "", "text": "PER CURIAM: Convicted of possession, transportation, and removal of illicit liquor, Claude Bishop Minton has appealed, arguing that his motion to suppress evidence procured by an allegedly illegal search and seizure should have been granted. The search at issue here resulted from surveillance of Minton’s premises by officers of the Alcohol, Tobacco and Firearms Division who were notified by a reliable informant that a whiskey delivery would be made at the appellant’s premises between 6 and 7 p. m. on November 3, 1972. Based on this tip and previous information over a period of two years that Minton was using his property to store illicit liquor, but without a search warrant, the officers stationed themselves at the top of a 12-14 foot high embankment looking down on Minton’s building at a distance of 80 to 90 feet. They observed a van truck arrive at the building shortly after 6 p. m. and by the use of binoculars viewed cartons containing one-gallon plastic containers being unloaded from the vehicle. They also detected the odor of illicit whiskey. Appellant was arrested as he reached into the truck to unload another carton; boxes holding plastic containers of illicit liquor were plainly visible in the truck and through the open doorway of the building. It is not clear that the embankment from which the officers made their observations belonged to Minton, but even if it did, such a location at such a distance is probably not within the curtilage. United States v. Campbell, 395 F.2d 848 (4th Cir. 1968); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), Care v. United States, 231 F.2d 22 (10th Cir. 1956). Nor did the use of binoculars by the officers constitute an extension of their persons so as to put them within the curtilage. United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1926). More important than the rubric of realty, see Wattenburg v. United States, 388 F.2d 853 (9th Cir. 1968); Texas v. Gonzales, 388 F.2d 145 (5th Cir. 1968), there was here, we think, no reasonable" }, { "docid": "2142597", "title": "", "text": "individual’s right of privacy within the broad sweep of the Fourth Amendment.” We bear in mind that the protection of the Amendment extends not only to the dwelling house of a defendant but also to the structures used by him in connection with his home or his place of business. Wakkuri v. United States, 6 Cir., 67 F.2d 844; Roberson v. United States, 6 Cir., 165 F.2d 752; Temperani v. United States, 9 Cir., 299 F. 365. The Amendment, however, is specifically limited to the right of the people to be secure in their “persons, houses, papers, and effects” against unreasonable searches and seizures, and it does not extend to open fields, as was held in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898, where revenue agents approached the defendant’s dwelling house over his land, observed from a distance certain actions which led them to believe that he was in possession of illicit liquor, and later verified their belief by an examination of certain containers of liquor on the place. The fact that the officers were trespassers on the defendant’s property was thought to be immaterial. In that case the seizure was made without search warrant in connection with an arrest of the defendant without warrant for violation of the internal revenue laws and the evidence was held to be admissible. In the instant case likewise the seizure was made as an incident to an arrest without warrant and the legality of the arrest is beyond question since the facts within the knowledge of the arresting officer and the actions of the defendant within his view abundantly justified the belief that a crime of the grade of felony was being committed in his presence. The agent was acquainted with the fact that the defendant had been engaged in the business of dealing in illicit liquor in the past, and he also knew that Torain had been instructed to go to the farm and make a purchase of whiskey from the defendant. With this knowledge in mind and without any previous attempt to make a search" }, { "docid": "897354", "title": "", "text": "whiskey. Appellant was arrested as he reached into the truck to unload another carton; boxes holding plastic containers of illicit liquor were plainly visible in the truck and through the open doorway of the building. It is not clear that the embankment from which the officers made their observations belonged to Minton, but even if it did, such a location at such a distance is probably not within the curtilage. United States v. Campbell, 395 F.2d 848 (4th Cir. 1968); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), Care v. United States, 231 F.2d 22 (10th Cir. 1956). Nor did the use of binoculars by the officers constitute an extension of their persons so as to put them within the curtilage. United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1926). More important than the rubric of realty, see Wattenburg v. United States, 388 F.2d 853 (9th Cir. 1968); Texas v. Gonzales, 388 F.2d 145 (5th Cir. 1968), there was here, we think, no reasonable expectation of privacy — considering the time of day and all the surrounding circumstances. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Whether or not it might have been wiser (and the better practice) to have procured a search warrant, but cf. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), such a warrant was not necessary since no search occurred until the officers entered upon defendant’s premises and approached the van he was in the process of unloading. At the time of their entrance and approach the officers had probable cause to believe a felony was being committed in their presence. The seizure of illicit whiskey in the van and in the building may be justified as within the “plain view” doctrine. Coolidge v. New Hampshire, 403 U.S. 443, 464-466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Musgrove v. Eyman, 435 F.2d 1235 (9th Cir. 1971); United States v." }, { "docid": "467405", "title": "", "text": "to articulate how he perceives that his Fourth Amendment rights were violated by Lindsey, Motley and Barney’s actions. Plaintiffs only reference to the Fourth Amendment is contained in the following sentence: “We are unwilling to Balkanize the rule of qualified immunity for cases involving allegedly unlawful warrant less (sic) searches of innocent third parties’ homes in search of fugi tives.” (Resp. at 24.) For the reasons that follow, the court does not find a connection between the law cited by Plaintiff and the officers’ actions in the instant case, such that the officers could be found to have violated clearly established law. First, the law upon which Plaintiff relies is based upon the illegal search of an individual’s home. In the instant case, the officers at no time entered Plaintiffs home. The vehicles that were allegedly in violation of the ordinance, were in clear view from the road. The Supreme Court of the United States in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), held that Fourth amendment protection does not extend to open fields. In determining whether evidence found on defendant’s land around his home was the product of an illegal search, the Supreme Court indicated: “... the special protection accorded by the Fourth Amendment to people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields. The distinction between the latter and the house is as old as common law.” Hester, 265 U.S. at 59, 44 S.Ct. 445. Here, Plaintiff stored the vehicles on the land around his home. The vehicles could be observed by the public from the road. Thus, because the vehicles in question were clearly observable, the court finds that, if Plaintiff is basing his Fourth Amendment claim upon an illegal search, the claim is not well grounded. Second, Plaintiff may be attempting to bring his claim as an unreasonable Fourth amendment seizure claim. However, he has failed to provide any case law regarding illegal seizure, much less any case law related to these facts. The court, through its independent research, also has not uncovered" }, { "docid": "12009860", "title": "", "text": "such surveillance violated their constitutional right of privacy and must be suppressed. The district court agreed that, while appellants were inside the house, they had a legitimate expectation of privacy from telescopic observation. See United States v. Taborda, 635 F.2d 131, 136-38 (2d Cir. 1980). However, because the area between the house, the garage, and the barn was clearly visible from the road and could easily be observed by outsiders who “could enter the open property at will”, the district court held that none of the appellants had a legitimate expectation of privacy while in that open area. We agree. In Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924), Justice Holmes enunciated for the Court what has since become to be known as the “open fields” doctrine. There, two revenue officers were approaching a farmhouse in which the defendant lived, when they saw another person drive near the house. The officers concealed themselves from 50 to 100 yards away and saw the defendant come out of the house and hand the arrival a bottle which contained moonshine whiskey. The Court held that, even if the revenue officers were trespassers, there was no illegal search or seizure, stating that “the special prohibition accorded by the Fourth Amendment ... is not extended to the open fields.” Id. at 59, 44 S.Ct. at 446. Although the emphasis on Fourth Amendment protections has shifted from places to people, Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), the “open fields” doctrine continues to receive judicial recognition. This is because people generally do not have a legitimate expectation of privacy in open and accessible areas that the public is prepared to recognize as reasonable. United States v. Freie, 545 F.2d 1217, 1223 (9th Cir.), cert. denied, 430 U.S. 966, 97 S.Ct. 1645, 52 L.Ed.2d 356 (1976). Thus, in Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974), the Court held that a state health inspector’s warrantless entry onto defendant’s outdoor premises" }, { "docid": "1452085", "title": "", "text": "LYNNE, District Judge: Convicted under a two-count indictment charging him with unlawful possession of fifty gallons of nontaxpaid whiskey (26 U.S.C. § 5205(a) (2)) and the unlawful removal or concealment thereof (26 U.S.C. § 7206(4)), appellant is here insisting that the trial court erred in refusing to suppress and in permitting the introduction of evidence relating to the discovery by officers Treherne and Willemoes of contraband liquor in the trunk of an automobile. On the night of August 26, 1964, these officers, while positioned in the vicinity of a vacant house in Mobile, Alabama, observed an automobile, occupied by two men, being driven upon the premises. The driver, Salisbury, a co-defendant who entered a plea of guilty, proceeded to remove two packages, wrapped in paper and having the general shape of one-gallon jugs, from the trunk of the car and to place them on the ground. Appellant, who was well-known to and recognized by Treherne when he flashed a light in his face, fled and was not apprehended until the next day. Salisbury ran when Treherne started toward him and was immediately arrested by Wille- moes. Treherne tripped over the two packages on the ground and, by tasting, identified their contents as moonshine whiskey. The lid of the trunk had been left up, and there were exposed to plain view forty-eight one-gallon glass jugs full of whiskey bearing no tax stamps. These were promptly seized by the, officers after Salisbury had been placed under arrest. Appellant, testifying at the trial as a witness in his own behalf, denied that he was present at the scene and asserted that he neither owned nor possessed the automobile involved and that he had no interest in or connection with the whiskey seized. On its facts, this case is an inappropriate vehicle for re-examination of the rationale of cases holding that one who disclaims ownership or possession of, or connection with the premises searched or the property seized, lacks standing to complain of an unlawful search or seizure. Parr v. United States, 255 F.2d 86, 89 (5th Cir. 1958) ; Lovette v. United States," }, { "docid": "6465022", "title": "", "text": "white ’55 Buick automobile and they generally used U. S. Highway 61. The informer also gave the license tag numbers. Investigator Strickland passed this information on to Joe Lee Cox, a lieutenant in the Shelby County Sheriff’s Office. Lieutenant Cox with Sergeant Crossno, also of the sheriff’s office, took up surveillance on Route 61 where the automobile in question was likely to pass. At about 5:50 a. m. Lieutenant Cox and Sergeant Crossno identified the automobile driven by Freeman in which Lee Mosby was a passenger. They stopped the ear and ordered the occupants to get out. They had observed that the rear end of the car was sagging and as they approached the car they smelled a strong odor of whiskey. Sergeant Crossno got into the car and through a hole in the back seat observed two cans. He put his arm through the hole, removed the lid from one of the cans and put his hand inside of the can. From the taste and smell he was able to identify the contents as whiskey. Investigator Strickland arrived on the scene just after the Freeman automobile was stopped. He took a small screw driver from the pocket of Mosby with which he opened the trunk of Freeman’s car. He found two five-gallon cans of non-tax-paid whiskey. The whiskey was seized and Freeman and Mosby were placed under arrest. A motion to suppress evidence was filed on behalf of the appellant. It was claimed that the two cans of whiskey were illegally seized without a search warrant and that a signed statement or confession of the appellant was obtained contrary to law. The district judge conducted a hearing out of the presence of the jury and denied the motion. Under the facts of this case, the officers had probable cause to believe that a crime was being committed and the search of the automobile was therefore justified. An officer may stop and search a motor vehicle for the purpose of discovering suspected contraband cargo, if the officer has reasonable cause to believe that the automobile he stops contains such contraband." }, { "docid": "15711018", "title": "", "text": "jugs of untaxed alcohol, each in a paper bag, on his person. One of the agents then took appellant by the arm and placed him under arrest. After examining the jugs and finding them to be filled with untaxpaid liquor, the agents went to the automobile that was parked near the back door and found twenty one-gallon jugs containing whiskey, which had been placed on the car floor, including the space from which the back seat had been removed. These jugs were in paper bags, and it could not be ascertained whether they contained untaxed liquor until the bags were opened and the caps were removed from the jugs. The Fourth Amendment prohibits unreasonable searches and seizures, and its protection extends to both houses and effects. The Supreme Court and this Court have condemned certain searches as unreasonable. See Weeks v. United States, 1914, 232 U.S. 383, 34 S. Ct. 341, 58 L.Ed. 652; Agnello v. United States, 1925, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Walker v. United States, 5 Cir., 1955, 225 F.2d 447; and see Lee v. United States, 1956, 98 U.S.App.D.C. 97, 232 F.2d 354. Only where incident to a valid arrest, United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, or in exceptional circumstances, Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, may search without warrant be made; and then the burden is on those invoking the exception to produce facts to justify it. The majority of this Court is of the opinion that, under the authorities cited and many others laying down like principles, neither the search of the house nor that of the car, nor the arrest were legal and that the evidence seized by the officers should not have been admitted against the appellant. The judgment of the court below, sitting by agreement without a jury, in which the appellant was found guilty and sentenced to imprisonment is reversed and the case is remanded. Judge CAMERON disagrees with the conclusion of the majority. He thinks that the undisputed facts" }, { "docid": "1452086", "title": "", "text": "Treherne started toward him and was immediately arrested by Wille- moes. Treherne tripped over the two packages on the ground and, by tasting, identified their contents as moonshine whiskey. The lid of the trunk had been left up, and there were exposed to plain view forty-eight one-gallon glass jugs full of whiskey bearing no tax stamps. These were promptly seized by the, officers after Salisbury had been placed under arrest. Appellant, testifying at the trial as a witness in his own behalf, denied that he was present at the scene and asserted that he neither owned nor possessed the automobile involved and that he had no interest in or connection with the whiskey seized. On its facts, this case is an inappropriate vehicle for re-examination of the rationale of cases holding that one who disclaims ownership or possession of, or connection with the premises searched or the property seized, lacks standing to complain of an unlawful search or seizure. Parr v. United States, 255 F.2d 86, 89 (5th Cir. 1958) ; Lovette v. United States, 230 F.2d 263, 264 (5th Cir. 1956). Clearly, the search and seizure here complained of was valid as incident to the arrest of Salisbury which was lawful under the provisions of 26 U.S.C. § 7608(b) (2) (B). Moreover, there was nothing unreasonable about observing the whiskey which was plainly visible to the naked eye and thereafter seizing it. United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Nicholson v. United States, 355 F.2d 80 (5th Cir. 1966); Petteway v. United States, 261 F.2d 53 (4th Cir. 1958); Haerr v. United States, 240 F.2d 533 (5th Cir. 1958). There remains for consideration appellant’s contention that the trial court erred in denying his verified motion for a new trial without a hearing thereon. Chronology is important in the ensuing discussion. The trial jury returned a general verdict of guilty on May 13, 1965. On May 18 judgment of conviction was entered and sentence imposed. On May 21 appellant filed his motion for a new trial and contemporaneously therewith filed his notice of" }, { "docid": "2919357", "title": "", "text": "the appellant, a known liquor violator, placing two large cardboard boxes (each of which contained six gallons of untaxed whiskey), in a 1961 Buick. The observations were made from a field belonging to another, about 50 yards from the appellant’s house. This did not constitute an illegal search. Hester v. United States, 1924, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898; Fullbright v. United States, 10th Cir. 1968, 392 F.2d 432, cert. denied 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed. 2d 101. The whiskey was found in the Buick which was being operated on the public street by appellant’s co-defendant. The appellant was not in or near the vehicle at the time; and he has denied any connection with the vehicle. Therefore he has no standing to object to the search of the vehicle. Cassady v. United States, 5th Cir. 1969, 410 F.2d 379, and cases there cited. At his trial, the appellant testified that the arresting officers injured him when they placed him under arrest. This was denied by the officers. Absent any prejudice to the appellant’s right to a fair trial, which is not alleged nor shown, this allegation does not constitute grounds for reversal. The appellant's claim of perjury of the key prosecution witness, Special Investigator Griffith, is based on his denial of the truth of Griffith’s testimony. In testifying at his trial, Grimes denied that he had placed the boxes in the Buick automobile; and he averred that it would have been physically impossible for Griffith to have observed appellant doing so. With respect to such conflicts in the testimony, the credibility choice is the province of the jury. Tillman v. United States, 5th Cir. 1969, 406 F.2d 930. The officer’s testimony must be ac cep ted here as true, since it is not inherently incredible. Fowler v. United States, 5th Cir. 1956, 234 F.2d 695. The Government’s evidence was ample to sustain the verdict of the jury. We have found no error in the proceedings below, and accordingly the judgment of the district court must be affirmed. Affirmed. . Pursuant to Rule 18" }, { "docid": "6465023", "title": "", "text": "whiskey. Investigator Strickland arrived on the scene just after the Freeman automobile was stopped. He took a small screw driver from the pocket of Mosby with which he opened the trunk of Freeman’s car. He found two five-gallon cans of non-tax-paid whiskey. The whiskey was seized and Freeman and Mosby were placed under arrest. A motion to suppress evidence was filed on behalf of the appellant. It was claimed that the two cans of whiskey were illegally seized without a search warrant and that a signed statement or confession of the appellant was obtained contrary to law. The district judge conducted a hearing out of the presence of the jury and denied the motion. Under the facts of this case, the officers had probable cause to believe that a crime was being committed and the search of the automobile was therefore justified. An officer may stop and search a motor vehicle for the purpose of discovering suspected contraband cargo, if the officer has reasonable cause to believe that the automobile he stops contains such contraband. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. United States 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; United States v. Prince, 301 F.2d 358 (C.A. 6); United States v. Haley, 321 F.2d 956 (C.A. 6); United States v. Thomas, 319 F.2d 486 (C.A. 6); United States v. Baxter, 361 F.2d 116 (C.A. 6), cert. den. 385 U.S. 834, 87 S.Ct. 79, 17 L.Ed.2d 69; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; McCray v. State of Illinois, 386 U.S. 301, 87 S.Ct. 1056, 18 L.Ed.2d 62. The appellant was adequately admonished that he need not make any statement, that any statement he did make could be used against him and that he was entitled to have a lawyer before answering any questions. The admonition met the requirements of the law as it existed at the time of the appellant’s arrest. There is testimony that the statement was read to the appellant several times, difficult words such as “intimidate” were explained to" }, { "docid": "8046574", "title": "", "text": "obtained and surveillance activities were resumed. At approximately 9:15 p.m. a black and white 1955 DeSoto drove onto the premises and two men got out and began to load the automobile with 5 gallon containers taken from the outbuilding. After the vehicle had left, a search of the premises under authority of the search warrant revealed an illicit distillery in operation. The agents then transmitted to other agents in the area a description of the DeSoto, its occupants, and the illegal activities that had been observed. Ten minutes later two agents who had received this communication by radio spotted the wanted car. They pulled up alongside it and recognizing appellant called to him by his nickname. Appellant then threw his car into reverse and sped away. After a brief chase appellant was overtaken by the agents who had hailed him. The agents got out of their car and walked toward the DeSoto. As they approached they smelled the odor of moonshine whiskey and observed tin cans and plastic jugs in the back seat of the vehicle. Appellant was then placed under arrest. Appellant raises two issues on this appeal. His first contention pertains to testimony given by the government agents at his trial. He argues that these agents, when asked whether or not they knew the defendant, replied that they knew him well and that his nickname was “Buddy.” No other details of their prior acquaintance with appellant were mentioned. Appellant nonetheless contends that these remarks alone were highly prejudicial. He asks us to regard them as tantamount to apprising the jury of appellant’s prior criminal record. We are referred to Odom v. United States, 5 Cir.1967, 377 F.2d 853 ; United States v. Reed, 7 Cir. 1967, 376 F.2d 226 ; United States v. White, 7 Cir.1966, 355 F.2d 909 and Lott v. United States, 5 Cir.1955, 218 F.2d 675, cert. denied 1956, 351 U.S. 953, 76 S.Ct. 848, 100 L.Ed. 1477. Appellant’s authorities are not in point. The cases upon which he relies go far beyond the mere fact of acquaintance with officers of the law. They all" }, { "docid": "2919354", "title": "", "text": "notice of direct appeal. In the case sub judice, however, we consider that filing of the notice of appeal was not untimely, since it was notarized five days after the date of denial of the motion for a new trial, even though it was received by the district court after the usual ten-day period. Fallen v. United States, 1964, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760, reversing 5th Cir. 1962, 306 F.2d 697; see Rule 4(a), F.R.A.P. Accordingly we adjudicate this direct appeal on its merits. The appellant has stated his contentions of invalidity of the judgment below in his motions for new trial and for reconsideration, as follows: 1. The complaint was dismissed prior to indictment, therefore he cannot validly be prosecuted under the indictment. 2. Appellant was deprived of his right to a speedy trial. 3. Inadequate representation of his counsel, who failed to subpoena a witness whom appellant desired. 4. Evidence (the bootleg whiskey) used against the appellant was obtained by unlawful search and seizure. 5. Appellant was injured by arresting officers at the time of his arrest. 6. The testimony of Special Investigator Robert E. Griffith, the chief prosecution witness, was false. The appellant testified to the contents of a letter dated October 4,1968, from the United States Attorney to the United States Commissioner, authorizing dismisal of the complaint. The record shows that thereafter, on December 12, 1968, the indictment was filed. The prior dismissal of the complaint by the United States Commissioner, however, did not bar the subsequent indictment and conviction on the same charges. See United States ex rel. Rutz v. Levy, 1925, 268 U.S. 390, 45 S.Ct. 516, 69 L.Ed. 1010; Draper v. Rhay, D.C.E.D.Wash. 1964, 242 F.Supp. 829, affirmed 9th Cir. 1966, 358 F.2d 304, cert. denied 384 U.S. 993, 86 S.Ct. 1901, 16 L.Ed.2d 1009. Appellant Grimes has contended that he was denied his right to a speedy trial. The record shows that no motion for speedy trial was filed in his behalf; and that he was first tried on April 21, 1969, some four months after indictment. That" }, { "docid": "2919356", "title": "", "text": "trial resulted in a mistrial, whereupon the appellant was tried a second time and convicted on May 9, 1969. Not having moved for a speedier trial, the appellant can not now complain of the delay. Harlow v. United States, 5th Cir. 1962, 301 F.2d 361, cert. denied 371 U.S. 814, 83 S.Ct. 25, 9 L.Ed.2d 56. Moreover, the delay was not excessive and appellant has not suggested any harm resulting therefrom. Appellant Grimes has not supplied the name of the witness whom his counsel allegedly failed to subpoena. After the trial, the appellant hired a second attorney who stated in his motion for leave to withdraw, that the alleged witness, still not named, refused to meet with the attorney to discuss the case. Our perusal of the record has convinced us beyond doubt that the appellant was adequately represented by his privately-retained counsel at the trial level. Appellant does not specify which evidence he contends was obtained by an unlawful search and seizure. At the trial, Special Investigator Griffith testified that through binoculars, he observed the appellant, a known liquor violator, placing two large cardboard boxes (each of which contained six gallons of untaxed whiskey), in a 1961 Buick. The observations were made from a field belonging to another, about 50 yards from the appellant’s house. This did not constitute an illegal search. Hester v. United States, 1924, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898; Fullbright v. United States, 10th Cir. 1968, 392 F.2d 432, cert. denied 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed. 2d 101. The whiskey was found in the Buick which was being operated on the public street by appellant’s co-defendant. The appellant was not in or near the vehicle at the time; and he has denied any connection with the vehicle. Therefore he has no standing to object to the search of the vehicle. Cassady v. United States, 5th Cir. 1969, 410 F.2d 379, and cases there cited. At his trial, the appellant testified that the arresting officers injured him when they placed him under arrest. This was denied by the officers. Absent" }, { "docid": "15711017", "title": "", "text": "put in an appearance at the house. Although the information that the house was being used on occasions to store whiskey was received by the officers some days prior to the arrest, they had not procured a search warrant, because they did not believe that the information, though reliable, furnished sufficient ground for obtaining a warrant. This was their first visit to the house after receipt of the information. After waiting the brief period mentioned, the officers observed a 1952 Ford automobile drive into the driveway and park near the back door of the residence. The appellant and a man named Richardson got out of the automobile and went into the rear door of the house and turned on a light. Shortly thereafter, Richardson came out, followed by appellant, each carrying objects in his hands the size and shape of gallon jugs. Two trips were made to the automobile, and the men were seen by the officers carrying these objects in paper bags. Thereupon, the officers entered the house and found the appellant with four jugs of untaxed alcohol, each in a paper bag, on his person. One of the agents then took appellant by the arm and placed him under arrest. After examining the jugs and finding them to be filled with untaxpaid liquor, the agents went to the automobile that was parked near the back door and found twenty one-gallon jugs containing whiskey, which had been placed on the car floor, including the space from which the back seat had been removed. These jugs were in paper bags, and it could not be ascertained whether they contained untaxed liquor until the bags were opened and the caps were removed from the jugs. The Fourth Amendment prohibits unreasonable searches and seizures, and its protection extends to both houses and effects. The Supreme Court and this Court have condemned certain searches as unreasonable. See Weeks v. United States, 1914, 232 U.S. 383, 34 S. Ct. 341, 58 L.Ed. 652; Agnello v. United States, 1925, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Walker v. United States, 5 Cir., 1955," }, { "docid": "13932011", "title": "", "text": "PER CURIAM. Appellant, William Floyd Thomas, was indicted in a two-count indictment for the possession and transportation of whiskey in unstamped containers, in violation of Sections 5205(a) (2) and 5604 (a) (1), Title 26 United States Code. He waived trial by jury and upon trial to the Court was found guilty on both counts. He received concurrent sentences of four years, with execution of sentence being suspended. Prior to trial, appellant moved to suppress the evidence, consisting of forty gallons of moonshine whiskey, which government agents found in the trunk of his automobile, which they stopped and searched on a public street without a search warrant. The motion to suppress was overruled. The correctness of this ruling is the only question presented by this appeal. The Government introduced evidence that on May 2, 1962, three government agents were checking on illicit stills located in a section of Marion County, Tennessee. About 5:00 P.M., as they were leaving the area, one of the agents was informed by a man that he knew that appellant would drive a Buick car into the area that evening. One of the agents had known appellant and his reputation for dealing in illicit whiskey for some ten to twelve years, had arrested appellant for illicit whiskey violations on three different occasions, and had seen this particular car on several occasions at the home of known violators. The agents went to the road that the informer said appellant would use that evening and concealed themselves nearby. Shortly after 5:00 P.M. appellant drove into the area in a Buick car. About an hour later he returned in the same ear, which appeared to be overloaded. The agents followed appellant into Jasper, Tennessee, and when he stopped for a traffic light, they pulled up beside him, stopped him and searched his car. This was at about 6:15 P.M. and at a place about one mile from the Marion County Court House. Appellant relies mainly upon Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, and Henry v. United States, 361 U.S. 98, 80 S.Ct. 168," }, { "docid": "13932012", "title": "", "text": "a Buick car into the area that evening. One of the agents had known appellant and his reputation for dealing in illicit whiskey for some ten to twelve years, had arrested appellant for illicit whiskey violations on three different occasions, and had seen this particular car on several occasions at the home of known violators. The agents went to the road that the informer said appellant would use that evening and concealed themselves nearby. Shortly after 5:00 P.M. appellant drove into the area in a Buick car. About an hour later he returned in the same ear, which appeared to be overloaded. The agents followed appellant into Jasper, Tennessee, and when he stopped for a traffic light, they pulled up beside him, stopped him and searched his car. This was at about 6:15 P.M. and at a place about one mile from the Marion County Court House. Appellant relies mainly upon Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, and Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134. It was held in the Johnson case that the search of a room in a hotel without a warrant was illegal in that no exceptional circumstances existed which justified dispensing with the necessity of obtaining a search warrant. The Court pointed out that no suspect was fleeing or likely to take flight and the search was of permanent premises, not of a movable vehicle. In the Henry case it was held that the search of an automobile without a warrant was illegal because the search was upon suspicion only and probable cause for the search did not exist. The Court pointed out that while under certain circumstances it is not necessary to obtain a warrant on the ground of practicality, as in the case in the search of a moving vehicle, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, it is necessary that probable cause exist such as would warrant a prudent man in believing that an offense has been committed. Although a warrant may be dispensed" }, { "docid": "15711016", "title": "", "text": "CAMERON, Circuit Judge. Upon evidence obtained by federal agents without a search warrant, the appellant Carl Turner Weaver was indicted and convicted of having in his possession untaxed whiskey. From this conviction Weaver appeals on the ground that the district court erred in denying his motion to suppress and overruling his objections to admitting evidence so obtained. This appeal presents the question whether the district court should have granted the appellant’s motion to suppress the evidence on the ground that it was obtained through an unlawful search and seizure. The evidence, consisting of the testimony of the two federal officers, was undisputed. On November 3, 1959, the two revenue officers placed themselves at a point of surveillance in a field about fifteen yards from the house in which appellant stated he resided. They arrived at the scene about 6:00 P.M. after having received information that untaxed liquor was being stashed in, and on occasions hauled away from, the house; and the officers had waited from twenty to thirty minutes for some person or persons to put in an appearance at the house. Although the information that the house was being used on occasions to store whiskey was received by the officers some days prior to the arrest, they had not procured a search warrant, because they did not believe that the information, though reliable, furnished sufficient ground for obtaining a warrant. This was their first visit to the house after receipt of the information. After waiting the brief period mentioned, the officers observed a 1952 Ford automobile drive into the driveway and park near the back door of the residence. The appellant and a man named Richardson got out of the automobile and went into the rear door of the house and turned on a light. Shortly thereafter, Richardson came out, followed by appellant, each carrying objects in his hands the size and shape of gallon jugs. Two trips were made to the automobile, and the men were seen by the officers carrying these objects in paper bags. Thereupon, the officers entered the house and found the appellant with four" } ]

[ { "docid": "15086918", "title": "", "text": "find that the result of the application of Tedder was arbitrary or irrational. IV. Conclusion Because it granted relief as to the sentence on the basis of the jury override, the district court did not address other claims asserted by Lusk which challenge his sentence. While we could address those claims, see Lindsey v. Smith, 820 F.2d 1137 (11th Cir.1987), we conclude that a proper exercise of our discretion in this case, given the nature of the claims and the issues presented, is to remand them to the district court so that the district court may address them in the first instance. The judgment of the district court is REVERSED to the extent that it grants relief on the jury override issue and AFFIRMED on all other issues. The case is REMANDED to the district court for consideration of the claims that court has not yet addressed. . Tedder v. State, 322 So.2d 908 (Fla.1975), established Florida's standard of reviewing a judge’s decision to override an advisory jury’s recommendation of life. Therein the court stated: A jury recommendation under our trifurcat-ed death penalty statute should be given great weight. In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ. Id. at 910. . Lusk does not argue in his appellate brief that he received ineffective assistance of counsel on direct appeal and therefore that claim is considered abandoned. Ballard v. Johnson, 821 F.2d 568 n. 1 (11th Cir.1987). . We refer to the hearing before the advisory jury as the \"penalty phase” and to the subsequent hearing before the judge as the \"sentencing phase.” . This contention is inextricably linked to Lusk's interpretation of Tedder and its progeny. Lusk contends that if there is any basis to support a jury recommendation of life, then the trial judge must abandon his duty to balance aggravating factors against mitigating factors in determining sentence and accept that recommendation. It is now clear that the Florida courts do not so" } ]

[ { "docid": "12416969", "title": "", "text": "the Supreme Court issued its opinion in Lindh v. Murphy, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), holding that the AEDPA does not apply to cases pending at the time of its effective date of April 24, 1996. In response to the Lindh decision, Ransom moved to alter or amend the district court’s judgment. That motion was denied. Ransom filed a notice of appeal and a request for CPC. The district court denied the CPC and vacated its stay. Ransom’s execution date of October 28, 1997 was then set by the state court. On August 21, 1997, Ransom filed in this court a motion to stay the execution. Ransom filed a motion for CPC on September 26,1997. III. STANDARD OF REVIEW We apply pre-AEDPA standards to this habeas petition filed prior to the effective date of the AEDPA for relief from a Texas death sentence. See Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir.1997)(applying pre-AEDPA standard to case filed before effective date of act as Texas had not met opt-in requirements for capital cases). The merits of Ransom’s claim may be reviewed only if the court grants a certificate of probable cause (“CPC”). A appellate court is without jurisdiction to address the merits of an appeal from a district court denial of habeas relief unless it grants a CPC. James v. Cain, 50 F.3d 1327, 1330 (5th Cir.), cert. denied, — U.S.-, 116 S.Ct. 310, 133 L.Ed.2d 213 (1995). To obtain a CPC, Ransom must “make a substantial showing that he has been denied a federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). Ransom must “demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” Id. at 893 n. 4, 103 S.Ct. at 3394 n. 4; James, 50 F.3d at 1330. The nature of the penalty in a capital ease is a relevant, but not determinative, factor in deciding whether to grant a CPC." }, { "docid": "21606761", "title": "", "text": "The district court denied all relief, denied the motion for an evidentiary hearing, and denied a certificate of probable cause to appeal. Black v. Collins, No. H-92-1507, (S.D.Tex. May 19, 1992) [hereinafter Dist.Ct.Op.]. Black has filed with this court an application for a certificate of probable cause to appeal and a motion for a stay of execution scheduled for May 22, 1992. II. DISCUSSION A. Certificate of Probable Cause to Appeal We have no jurisdiction to hear an appeal in this case unless we first grant a certificate of probable cause. Fed. R.App.P. 22(b). To obtain a CPC, Black must “make a ‘substantial showing of the denial of [a] federal right.’ ” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (quoting Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972)); Jones v. Whitley, 938 F.2d 536, 539 (5th Cir.), cert. denied, — U.S. —, 112 S.Ct. 8, 115 L.Ed.2d 1093 (1991). To sustain this burden, Black “must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are ‘adequate to deserve encouragement to proceed further.’ ” Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4 (quoting Gordon v. Willis, 516 F.Supp. 911, 913 (N.D.Ga.1980)) (emphasis in Gordon; brackets in Barefoot). Although an appellate court may consider the fact that the penalty is death when deciding whether to grant a CPC, this alone does not warrant the automatic issuance of a CPC. Barefoot, 463 U.S. at 893, 103 S.Ct. at 3394; White v. Collins, 959 F.2d 1319 (5th Cir.1992). Black’s application for a certificate of probable cause focuses on only two of the issues that he raised in federal district court. First, he argues that he presents a claim under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), and Graham v. Collins, 950 F.2d 1009 (5th Cir.1992) (en banc), cert. granted — U.S. —, 112 S.Ct." }, { "docid": "15979396", "title": "", "text": "habeas petition. McCleskey v. Zant, 499 U.S. 467, 498, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991). Under McCleskey, an abuse of the writ will not be excused unless the petitioner can show cause for failing to raise the claim earlier and prejudice resulting therefrom. Id. at 494, 111 S.Ct. at 1470; see also id. at 497, 111 S.Ct. at 1472 (“This ruling on the merits cannot come before us or any federal court if it is premised on a claim that constitutes an abuse of the writ.”). Since the state has raised abuse of the writ, the burden of proving that there has been no abuse shifts to the petitioner. Burger v. Zant, 984 F.2d 1129, 1132 (11th Cir.), cert. denied, — U.S. -, 114 S.Ct. 141, 126 L.Ed.2d 104 (1993). Petitioner may meet this burden by showing that he did not deliberately abandon the claim, his failure to raise it was not because of inexcusable neglect, and he had a justifiable reason for omitting the claim in an earlier petition. Id. at 1132-33. We gave the example of newly discovered evidence that was not available at the time of the original filing as sufficient to overcome petitioner’s burden. Id. at 1133; see Alderman v. Zant, 22 F.3d 1541, 1551-52 (11th Cir.), cert. denied, — U.S. -, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994) (“ ‘[C]ause ... requires a showing of some external impediment preventing counsel from constructing or raising the claim.”’ (quoting McCleskey, 499 U.S. at 497, 111 S.Ct. at 1472)). Weeks has not met this burden. Accordingly, we find the ineffective assistance of counsel claim to be successive and to constitute abuse of the writ. B. Competency to be Executed We issue a certificate of probable cause only if the petitioner can make a substantial showing of the denial of a federal right. Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). While Weeks need not demonstrate that he would prevail on the merits under this standard, he is required to show that the issue is debatable among jurists of reason." }, { "docid": "14364457", "title": "", "text": "over the years, it was abundantly clear that the question of his competency to be executed was extant at the time of his first habeas petition because “Barnard’s habeas counsel have known and asserted for years that Barnard’s sanity is questionable.” Thus, because the district court determined that Barnard failed to demonstrate good cause for his failure to raise the issue of his competency in his earlier writ, the court dismissed Barnard’s petition on grounds that he had abused the writ. We need not reach the question of whether Barnard abused the writ for purposes of his entitlement to habeas relief on the merits. Even if we assume arguendo that Barnard did not abuse the writ, we find that Barnard has not made a substantial showing of a denial of a federal right, and thus we deny his application for a CPC and his motion to stay his execution. Standard of Review This court reviews an application for a CPC using the same standard as that used by the district court in the first instance. That is, we will grant a CPC to appeal only if the applicant can make a substantial showing of a denial of a federal right. Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983); Drew v. Collins, 5 F.3d 93, 95 (5th Cir.1993), petition for cert. filed (Jan. 5, 1994). This standard does not require the applicant to show that he would prevail on the merits, but it does require him to show that the issues he presents are debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. at 3395 n. 4; Drew, 5 F.3d at 95. The same standard essentially applies to an application for a stay of execution. Drew, 5 F.3d at 95 (citing Delo v. Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325 (1990) (“A stay of execution pending disposition of a second or successive federal habeas petition should be granted only when there are ‘substantial grounds upon which relief might be granted.’ ” (quoting Barefoot, 463" }, { "docid": "9567706", "title": "", "text": "the district court, chose to rely on state procedural bar. Where a party has abandoned a claim on appeal, we need not address it. Moore v. Zant, 885 F.2d 1497, 1501 n. 4 (11th Cir.1989) (en banc) (plurality) (“We deem those claims not advanced on appeal abandoned.”). Especially where the state chooses not to rely on abuse of the writ, an appellate court should not raise the bar as the Supreme Court has declared emphatically that the burden is on the government to plead abuse of the writ with clarity and particularity. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963); Price v. Johnston, 334 U.S. 266, 291, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948). In Moore v. Zant, 885 F.2d 1497, a majority of the court expressed the view that in reviewing a claim presented in a second federal habeas petition, the court must address first whether the claim presented by the petitioner constitutes an abuse of the writ; only then could the court consider the availability of the claim under the retroac-tivity doctrine delineated by the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Because the state does not rely on abuse of the writ, we need not decide whether the splintered en banc precedent set by this court in Moore v. Zant can survive the Supreme Court’s recent decision in Saffle v. Parks, — U.S. -, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), where the Court addressed retroactivity at the outset of its analysis. Clark’s conviction became final in 1981 when the Supreme Court declined to grant certiorari to review Clark’s conviction and direct appeals through the Florida courts, and we must decide whether Clark is entitled to the retroactive benefit of Caldwell v. Mississippi, which was decided in 1985. In Teague, Penry, — U.S. -, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), Butler v. McKellar, — U.S. -, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990), and Parks, the Supreme Court has delineated the re-troactivity doctrine which we are bound to follow." }, { "docid": "2431809", "title": "", "text": "the denial of [a] federal right.’ ” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (quoting Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972)); Jones v. Whitley, 938 F.2d 536, 539 (5th Cir.), cert. denied, — U.S. —, 112 S.Ct. 8, 115 L.Ed.2d 1093 (1991). To succeed in this showing, May “must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4 (citations omitted); see Sawyer v. Whitley, 945 F.2d 812, 815 (5th Cir.) (granting CPC to determine whether appellant could be actually innocent of his death sentence because case “presented a question which is debatable among jurists of reason”), cert. granted, — U.S. -, 112 S.Ct. 434, 116 L.Ed.2d 453 (1991). We are convinced that the issue presented by May’s most recent appeal is “debatable among jurists of reason” and therefore grant the certificate of probable cause. Although the Supreme Court’s decision in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), makes clear that the lack of a live evidentiary hearing in state court is not automatically fatal to the § 2254(d) presumption of correctness, this court has not previously addressed a state court’s use of a “paper hearing” to resolve a factual dispute involving the credibility of recanting witness affidavits. Our decisions since Sumner have dealt primarily with “paper hearings” underlying ineffective assistance of counsel claims. E.g., Buxton, supra. Moreover, the parties have fully briefed the issue in response to our request for supplemental briefing. Under these circumstances, we believe a full review on the merits is warranted. III. SUCCESSIVE AND ABUSIVE CLAIMS In his first federal habeas petition, May raised two of the constitutional claims he presses here: (1) that prosecutors knowingly used Miles’s “coached” testimony and (2) that prosecutors interfered with cross-examination through" }, { "docid": "3882826", "title": "", "text": "a successive petition for habeas corpus — not in a motion pursuant to Fed.R.Civ.P. 60(b) or 11th Cir.R. 41-l(b). Moreover, the papers lodged with this court indicate that Lindsey has presented his Adamson claim in a successive petition filed in the district court on May 18, 1989, CA 89-0388-CB. We decline to consider that claim in the context of the instant motions. III. THE THIRD HABEAS PETITION Lindsey’s third petition for a federal writ of habeas corpus alleges that “his rights under the Sixth Amendment ... have been violated because the jury did not find any statutory aggravating factors even though one of these factors had to be found in order to make the offense death-eligible. Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988).” As noted above, see supra, p. 1511, the district court denied the petition on the alternative grounds that the petition constituted an abuse of the writ, that the Adamson claim was procedurally barred, and that the claim was meritless. See Lindsey v. Thigpen, No. 89-0388-CB-C, mem. op. at 3 (S.D.Ala. May 19, 1989). We agree with the district court both that this petition is an abuse of the writ and that the claim it raises is procedurally barred. Thus, without addressing the merits, we conclude that the certificate of probable cause should not issue, as Lindsey has failed to make a “substantial showing of the denial of a federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). Accordingly, the motion to stay Lindsey’s execution, the motion for appointment of new counsel, the motion to recall our mandate, and the applications for certificates of probable cause to appeal are DENIED. . The facts of Lindsey's case are set forth in our prior opinion. See 820 F.2d at 1140-41. . Lindsey’s May 22 motion for the appointment of new counsel also was addressed to the district court, which denied the motion. Lindsey v. Thigpen, Nos. 85-0775, 89-0388 (S.D.Ala. May 22, 1989). Lindsey seeks no review of that order. . We do not decide the propriety of moving pursuant to Fed.R.Civ.P." }, { "docid": "10117899", "title": "", "text": "Accordingly, we apply our pre-AEDPA case law to this appeal and construe Rector’s notice of appeal as a request for a CPC. II. Standard of Review The requirements for issuing a CPC are well established. Rector cannot appeal the district court’s denial of federal habeas relief unless he obtains a CPC from the district court or this court. 28 U.S.C. § 2253, amended by AEDPA § 102. Because the district court denied Rector’s request for a CPC, Rector’s right to appeal turns on whether we find that he has made a “substantial showing of the denial of a federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). In particular, Rector must “demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues (in a different manner); or that the questions are adequate to deserve encouragement to proceed further.” Id. at 893 n. 4, 103 S.Ct. at 3394 n. 4 (internal citations and quotation marks omitted). Rector need not, however, demonstrate that he would ultimately prevail on the merits. See Drew v. Collins, 5 F.3d 93, 95 (5th Cir.), cert. denied, 510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 555 (1994). And ‘“[although in a capital case the court may properly consider the nature of the penalty in deciding whether to grant CPC, this alone does not suffice to justify issuing a certificate.’” Turner v. Johnson, 106 F.3d 1178, 1186 (5th Cir.1997) (quoting Jacobs v. Scott, 31 F.3d 1319, 1323 (5th Cir.), cert. denied, 513 U.S. 1067, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995)). III. The Alleged Brady Violation Underlying Rector’s Brady claim is his view that he is innocent of Davis’s murder. As such, Rector paints a different picture of the events on the night of October 17,1981— a view which boils down to the suggestion that the State arrested, prosecuted, convicted, and sentenced to die the wrong man. Urging, as Rector does, his factual innocence of a crime which carries the (ultimate) sentence of death causes us to proceed with great caution. Rector argues that" }, { "docid": "9567704", "title": "", "text": "699 (Fla.1985). Clark’s first federal habeas petition was denied by the district court, and this court affirmed. Clark v. Dugger, 834 F.2d 1561 (11th Cir.1987). Although on that appeal Clark argued that his death sentence was obtained in violation of Caldwell v. Mississippi, we declined to reach that claim as the petitioner had not presented it to the district court. Clark returned to the Florida trial court with a third 3.850 motion raising ten claims for relief, including a Caldwell claim, but the trial court denied his motion for relief, ruling that Clark’s Caldwell claim was procedurally barred. The Florida Supreme Court affirmed, holding that Clark’s Caldwell claim was procedurally barred. Clark v. State, 533 So.2d 1144 (Fla.1988). Clark filed his second federal petition for habeas corpus, raising inter alia his Caldwell claim. The district court denied relief on all claims. As to the Caldwell claim, the court held it constituted an abuse of the writ, and, in the alternative, that it was without merit. The district court declined to issue a certificate of probable cause (“CPC”), but this court issued CPC limited to the Caldwell claim. Although Clark was denied relief by the district court on his other claims, he was not granted CPC for those claims, and he cannot, therefore, litigate them on appeal. Barefoot v. Estelle, 463 U.S. 880, 892-93, 103 S.Ct. 3383, 3394-95 and nn. 3 & 4, 77 L.Ed.2d 1090 (1983) (“Congress inserted the requirement that a prisoner first obtain a certificate of probable cause to appeal before being entitled to do so.”). RETROACTIVITY AND ABUSE OF THE WRIT Although the district court denied Clark’s Caldwell claim as an abuse of the writ, the state has not raised abuse of the writ in its appellate brief, and therefore it is deemed abandoned. Lusk v. Dugger, 890 F.2d 332, 335 n. 2 (11th Cir.1989) (claim not raised in appellate brief “considered abandoned”); Ballard v. Johnson, 821 F.2d 568, 569 n. 1 (11th Cir.1987) (same). At oral argument, Florida, although stating in response to questions from the court that abuse of the writ had been raised in" }, { "docid": "3882827", "title": "", "text": "19, 1989). We agree with the district court both that this petition is an abuse of the writ and that the claim it raises is procedurally barred. Thus, without addressing the merits, we conclude that the certificate of probable cause should not issue, as Lindsey has failed to make a “substantial showing of the denial of a federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). Accordingly, the motion to stay Lindsey’s execution, the motion for appointment of new counsel, the motion to recall our mandate, and the applications for certificates of probable cause to appeal are DENIED. . The facts of Lindsey's case are set forth in our prior opinion. See 820 F.2d at 1140-41. . Lindsey’s May 22 motion for the appointment of new counsel also was addressed to the district court, which denied the motion. Lindsey v. Thigpen, Nos. 85-0775, 89-0388 (S.D.Ala. May 22, 1989). Lindsey seeks no review of that order. . We do not decide the propriety of moving pursuant to Fed.R.Civ.P. 60(b) and 11th Cir.R. 41-l(b) simultaneously, as Lindsey has done in this case. Such procedural maneuvering assumes that jurisdiction of a single case (Lindsey's first habeas petition) can lie in both the district court and the court of appeals at the same time. The State has not raised this point, however, and, although it is jurisdictional and we must raise it sua sponte, we conclude that the district court’s denial of the Rule 60(b) motion on May 19, 1989, cured whatever jurisdictional defect might have existed when Lindsey filed the Rule 41 — 1(b) motion on May 18, 1989. Our holding in this regard, however, should not be interpreted as an approval of Lindsey’s procedural tactics. .Section 13A-5-49 of the Alabama Code provides: Aggravating circumstances shall be the following: (8) The capital offense was especially heinous, atrocious or cruel compared to other capital offenses. Ala.Code 1975 § 13A-5-49 (Michie Repl.Vol. 1982). . Where the jury is the sentencer, a recitation that the murder was \"especially heinous, atrocious or cruel” would not satisfy the second prong" }, { "docid": "10099145", "title": "", "text": "231 (1985), in his first habeas petition and its determination that the claim was procedurally barred both were based on the district court’s erroneous conclusion that Caldwell was inapplicable, the district court clearly abused its discretion in finding abuse of the writ and procedural bar on that basis. Further, as discussed below, we find that neither the abuse of the writ doctrine nor procedural bar precludes our consideration of the merits of this claim. a. Abuse of the Writ We find no evidence that Adams’ failure to raise this claim in his earlier petition was the result of inexcusable neglect or deliberate withholding. The Caldwell decision, upon which the claim is based, clearly was not available to Adams at the time he filed his first petition in September 1984. Indeed, the Supreme Court did not grant certiorari in Caldwell until after the district court had denied Adams’ first petition. Cf. Bowden v. Kemp, 793 F.2d 273, 275 & n. 4 (11th Cir.1986) (finding abuse of the writ when previous petition was filed after Supreme Court had granted certiorari in case upon which petitioner relied). Nor is the Eighth Amendment argument raised by Adams in this petition one of which he should have been aware at the time of filing his first petition. This claim is not one which had been raised and considered in a number of other cases at the time of that petition. Cf. Witt, 755 F.2d at 1398 (finding abuse of the writ when claim raised in case upon which petitioner relied “had been raised long before [that] case” so that failure to present the claim in his first petition was “necessarily attributable to abandonment or inexcusable neglect”). Nor did Supreme Court precedent at the time of Adams’ first habeas petition make it evident that statements such as those made by the trial judge in this case implicated the Eighth Amendment. In fact, if anything, that precedent indicated that the contrary was true. In California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), the Supreme Court decision most relevant to Adams’ claim before" }, { "docid": "1704923", "title": "", "text": "execution for August 18, 1989. On August 8, 1989, Richardson filed a motion for stay of execution in the Alabama Supreme Court, and on August 10, 1989, he filed a motion for post-conviction relief under Ala.Temp.R. Crim.P. 20 in the Circuit Court of Houston, County, Alabama. The circuit court denied his motion for post-conviction relief on Sunday, August 13, 1989. The Alabama Supreme Court denied Richardson’s petition for a stay of execution on Tuesday, August 15, 1989. On that day, Richardson filed his petition for habeas corpus in federal district court. II. Discussion This Court should grant an application for certificate of probable cause to appeal only if the petitioner makes a substantial showing that he has been denied a federal right. Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make this substantial showing, a petitioner must demonstrate that the issues are “debatable among jurists of reason,” that a court could resolve the issues differently, or that the issues are “adequate to deserve encouragement to proceed further.” Id. at 893 n. 4, 103 S.Ct. at 3394 n. 4 (quoting Gordon v. Willis, 516 F.Supp. 911, 913 (N.D.Ga.1980)). Richardson raised four issues in his petition for habeas corpus filed in the Middle District of Alabama: (1) ineffective assistance of appellate counsel; (2) trial court excluded non-statutory mitigating evidence at sentencing, see Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); (3) prosecution failed to disclose material exculpatory evidence to him at trial, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (4) he was unable to obtain critical expert assistance at trial due to his indigence, see Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). These claims are either procedurally barred as a matter of state law, see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), or constitute an abuse of the writ under Rule 9(b) foil. 28 U.S.C.A. § 2254. See Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d" }, { "docid": "15175582", "title": "", "text": "petition for writ of certiorari was denied by the U.S. Supreme Court. Harris v. Texas, 484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987). Having exhausted state collateral remedies, Harris next applied for a stay of execution in the United States District Court for the Southern District of Texas. Eventually, the district court denied relief and denied Harris’s request for a certificate of probable cause to appeal. He now appeals the denial of the certificate of probable cause to this court. Harris argues four issues in his effort to obtain CPC. First, he asserts that the prosecutor utilized peremptory challenges in a racially discriminatory way. Second, he states under the Texas death penalty law, the jury was unable to consider and give effect to mitigating evidence of Harris’ role in committing the offense. Third, he contends that the trial court violated his due process rights by “testifying” into the record about events surrounding the separation of jurors. He finally argues that two prospective jurors were improperly excused for cause in violation of Wither-spoon v. Illinois. DISCUSSION This court lacks jurisdiction to hear an appeal in this case unless a certificate of probable cause is granted. Fed.R.App. Proc. 22(b). To obtain a certificate of probable cause, Harris must “make a substantial. showing of the denial of a federal-right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983); Jones v. Whitley, 938 F.2d 536, 539 (5th Cir.1991, cert. denied, — U.S. ——, 112 S.Ct. 8, 115 L.Ed.2d 1093 (1991). To sustain this burden, Harris “must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further”. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4. A. Batson Claim. Harris initially seeks a certificate of probable cause to review his claim that the prosecutor utilized a peremptory challenge in a racially discriminatory fashion, violating Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The prospective juror" }, { "docid": "9567703", "title": "", "text": "KRAVITCH, Circuit Judge: Raymond Clark is before this court appealing the district court’s denial of his second federal petition for a writ of habeas corpus. Because we conclude that his claim, premised on Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), is procedurally barred, we affirm the district court’s denial of relief. BACKGROUND A Florida jury convicted Clark of first degree murder, kidnapping, and extortion, the facts of which are set forth in our previous decision, Clark v. Dugger, 834 F.2d 1561 (11th Cir.1987). He was sentenced to death, and the Florida Supreme Court affirmed his conviction and sentence on direct appeal, Clark v. State, 379 So.2d 97 (Fla.1979); the United States Supreme Court denied certiorari. Clark v. Florida, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 371 (1981). Clark filed two motions for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, both of which were denied by the trial court. The Florida Supreme Court affirmed. Clark v. State, 460 So.2d 886 (Fla.1984); Clark v. State, 467 So.2d 699 (Fla.1985). Clark’s first federal habeas petition was denied by the district court, and this court affirmed. Clark v. Dugger, 834 F.2d 1561 (11th Cir.1987). Although on that appeal Clark argued that his death sentence was obtained in violation of Caldwell v. Mississippi, we declined to reach that claim as the petitioner had not presented it to the district court. Clark returned to the Florida trial court with a third 3.850 motion raising ten claims for relief, including a Caldwell claim, but the trial court denied his motion for relief, ruling that Clark’s Caldwell claim was procedurally barred. The Florida Supreme Court affirmed, holding that Clark’s Caldwell claim was procedurally barred. Clark v. State, 533 So.2d 1144 (Fla.1988). Clark filed his second federal petition for habeas corpus, raising inter alia his Caldwell claim. The district court denied relief on all claims. As to the Caldwell claim, the court held it constituted an abuse of the writ, and, in the alternative, that it was without merit. The district court declined to issue a certificate of probable" }, { "docid": "12965353", "title": "", "text": "shot the victim. D. Jacobs’s case was automatically appealed to the Texas Court of Criminal Appeals, which affirmed his conviction and sentence. Jacobs v. State, 787 S.W.2d 397 (Tex.Crim.App.1990). Jacobs did not seek rehearing, informing the trial court that he wished to forego further appeals. The court scheduled Jacobs to be executed on June 22, 1990. Later, Jacobs told the court that he had changed his mind and did wish to seek further appeals. The execution date was rescheduled, and certiorari was denied. Jacobs v. Texas, 498 U.S. 882, 111 S.Ct. 231, 112 L.Ed.2d 185 (1990). Jacobs filed a habeas petition in the state trial court. That court recommended that relief be denied and forwarded the writ to the Court of Criminal Appeals, which denied the writ and denied rehearing. Ex parte Jacobs, 843 S.W.2d 517 (Tex.Crim.App.1992). Jacobs’s petition for certiorari was denied. Jacobs v. Texas, — U.S. -, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993). Jacobs filed a habeas petition and an application for stay of execution in federal district court, which denied the petition and denied CPC. Jacobs v. Collins, No. H-93-2454 (S.D.Tex.1993). The appeal of the district court’s decision is before us. III. We first must decide whether to grant CPC, for unless CPC is granted, we lack jurisdiction to hear this appeal. Black v. Collins, 962 F.2d 394, 398 (5th Cir.), cert. denied, — U.S. -, 112 S.Ct. 2983, 119 L.Ed.2d 601 (1992). Under Fed.R.App.P. 22(b), the standard for granting a CPC is whether the defendant has made “a substantial showing of the denial of a federal right.” Black, 962 F.2d at 398 (citing Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983)). He must “demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. at 3395 n. 4 (citations and internal quotations omitted). Although in a capital case the court may properly consider the nature of the" }, { "docid": "5499908", "title": "", "text": "was decided on the merits. The court noted that Rule 9(b) was designed to afford the district court discretion in reviewing a successive claim and to make redeterminations where “the applicant shows that the ends of justice would be served by permitting redeterminations of the ground,” citing Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). The district court held that O’Bryan’s current habeas petition presents no arguments that have not already been presented to this court and twice to the Supreme Court and rejected by all, and that the ends of justice would not be served by permitting redeterminations of those arguments. We are governed in this case by the Supreme Court’s recent opinion in Barefoot v. Estelle, — U.S.-, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Specifically, in order to obtain a certificate of probable cause, O’Bryan must make a “ ‘substantial showing of the denial of [a] federal right.’ ” 103 S.Ct. at 3394. He must demonstrate that the issues raised in his application for federal habeas relief are “debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are ‘adequate to deserve encouragement to proceed further.’ ” Id. at 3394 n. 4 (quoting Gordon v. Willis, 516 F.Supp. 911, 913 (N.D.Ga.1980)). We think that O’Bryan has failed to make that showing. The application in No. 84-2182 for leave to appeal in forma pauperis is GRANTED; the application in that case for a stay of execution is DENIED. The applications in No. 84-2183 for leave to appeal in forma pauperis, for a stay of execution and for a certificate of probable cause are DENIED. The mandate shall issue forthwith. . The State of Texas argues that the 1983 Complaint is a thinly-disguised habeas petition; that O’Bryan has failed to exhaust his state remedies; and that the filing of the 1983 Complaint is an abuse of the writ, citing Jones v. Estelle, 722 F.2d 159 (5th Cir.1983) (en banc). In view of the result that we reach, we do not decide" }, { "docid": "9567705", "title": "", "text": "cause (“CPC”), but this court issued CPC limited to the Caldwell claim. Although Clark was denied relief by the district court on his other claims, he was not granted CPC for those claims, and he cannot, therefore, litigate them on appeal. Barefoot v. Estelle, 463 U.S. 880, 892-93, 103 S.Ct. 3383, 3394-95 and nn. 3 & 4, 77 L.Ed.2d 1090 (1983) (“Congress inserted the requirement that a prisoner first obtain a certificate of probable cause to appeal before being entitled to do so.”). RETROACTIVITY AND ABUSE OF THE WRIT Although the district court denied Clark’s Caldwell claim as an abuse of the writ, the state has not raised abuse of the writ in its appellate brief, and therefore it is deemed abandoned. Lusk v. Dugger, 890 F.2d 332, 335 n. 2 (11th Cir.1989) (claim not raised in appellate brief “considered abandoned”); Ballard v. Johnson, 821 F.2d 568, 569 n. 1 (11th Cir.1987) (same). At oral argument, Florida, although stating in response to questions from the court that abuse of the writ had been raised in the district court, chose to rely on state procedural bar. Where a party has abandoned a claim on appeal, we need not address it. Moore v. Zant, 885 F.2d 1497, 1501 n. 4 (11th Cir.1989) (en banc) (plurality) (“We deem those claims not advanced on appeal abandoned.”). Especially where the state chooses not to rely on abuse of the writ, an appellate court should not raise the bar as the Supreme Court has declared emphatically that the burden is on the government to plead abuse of the writ with clarity and particularity. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963); Price v. Johnston, 334 U.S. 266, 291, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948). In Moore v. Zant, 885 F.2d 1497, a majority of the court expressed the view that in reviewing a claim presented in a second federal habeas petition, the court must address first whether the claim presented by the petitioner constitutes an abuse of the writ; only then could the court consider the availability" }, { "docid": "18686424", "title": "", "text": "Federal Rule of Civil Procedure 60(b), a motion for an evidentiary hearing, and a motion for leave to conduct discovery. In this second habeas petition, Clark raised ten claims of constitutional error. The district court held that upon review of the materials submitted by Clark, it could not discern any substantial ground upon which relief might be granted and denied Clark’s emergency application for stay of execution. The court also concluded that it could not reach the merits of Clark’s claims because the claims raised by Clark were either abusive or successive. The court, relying on Sawyer v. Whitley, — U.S. -, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), and McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), determined that Clark failed to demonstrate cause and prejudice, which would excuse his failure to raise his claims earlier. Finally, the court concluded that the “ends of justice” did not require that Clark be given an opportunity to relitigate his previously litigated claims or litigate his new, but abusive claims. The district court dismissed the second petition for writ of habeas corpus and denied Clark’s emergency application for a certificate of probable cause and stay of execution, his Rule 60(b) motion to vacate and reopen judgment, his motion for an evidentiary hearing, and his motion for leave to conduct discovery. Clark filed a notice of appeal and applied to this court for a certificate of probable cause and a stay of execution of his death sentence. While this application was pending, the Arizona Supreme Court denied his motion for a stay of execution. DISCUSSION This court should grant an application for a certificate of probable cause to appeal only if the petitioner makes a substantial showing that he has been denied a federal right. Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). To make this substantial showing, a petitioner must demonstrate that the issues are “debatable among jurists of reason,” that a court could resolve the issues differently, or that the issues are “adequate to deserve encouragement to proceed further.”" }, { "docid": "7841518", "title": "", "text": "the writ, denied a stay of execution, and denied a certificate of probable cause to appeal. II. ANALYSIS A. Certificate of Probable Cause to Appeal Because the district court denied a certificate of probable cause to appeal, we have no jurisdiction to decide May’s appeal unless we first decide to grant one. Fed.R.App.P. 22(b). To obtain a certificate of probable cause, May must “make a ‘substantial showing of the denial of [a] federal right.’ ” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (quoting Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972)); Jones v. Whitley, 938 F.2d 536, 539 (5th Cir.), cert. denied, — U.S. -, 112 S.Ct. 8, — L.Ed.2d -(1991). That is, he “must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4 (citations omitted); see Sawyer v. Whitley, 945 F.2d 812, 815 (5th Cir.1991) (granting CPC because case “presented a question which is debatable among jurists of reason”), cert. granted, — U.S. -, 112 S.Ct. 434, 116 L.Ed.2d 453 (1991). Our analysis of May’s present petition convinces us that May’s attempt to advance a Sixth Amendment claim as a result of the operation of the Texas capital sentencing scheme at the time of May’s trial amounts to no more than a reargument of the Eighth Amendment claim that was considered and rejected in his first round of federal habeas. Because May has presented the same claim which was earlier determined on the merits, the district court was correct to dismiss the petition. Rule 9(b) of the Rules Governing § 2254 Cases. B. Availability of a Sixth Amendment Claim Following Penry May goes to great lengths to distinguish the Sixth Amendment claim presented in his present petition from the Eighth Amendment claim decided against him in his first federal" }, { "docid": "13788171", "title": "", "text": "Cir.2000). Although the pre-AEDPA version of section 2253 did not require that the certificate specify the issues for which the applicant had been granted leave to appeal, precedent required that a petitioner make a “substantial showing of the denial of [a] federal right” in order to obtain a CPC. Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (alteration in original) (quoting Stewart v. Beto, 454 F.2d 268, 270 n. 2 (5th Cir.1971), overruled in part on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). Recently, the Supreme Court decided that the preAEDPA showing a petitioner had to make to obtain a CPC and the post-AEDPA statutory standard for obtaining a COA are substantially the same. See Slack, 529 U.S. at 483-84, 120 S.Ct. at 1603, (“Except for substituting the word ‘constitutional’ for the word ‘federal,’ § 2253 is a codification of the CPC standard announced in Barefoot v. Estelle .... ”). The primary difference between the certificates, then, is that a COA must specify on its face the issues on which the petitioner has been granted leave to appeal. Appellate review of an unsuccessful habeas petition is limited to the issues enumerated in the properly granted COA. See Murray v. United States, 145 F.3d 1249, 1251 (11th Cir.1998). In Slack, the Supreme Court clearly laid out the tests that courts should apply in deciding whether to grant a COA, both as to claims disposed of by the district court on the merits and those disposed of on procedural grounds. “Where a district court has rejected the constitutional claims on the merits, ... [t]he petitioner [seeking a COA] must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. at 1604. Where a district court has disposed of claims raised in a habeas petition on procedural grounds, a COA will be granted only if the court concludes that “jurists of reason” would find it debatable both “whether the petition states a valid" } ]

[ { "docid": "23342881", "title": "", "text": "Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (internal quotations omitted). The Agreement contains no language that could even arguably be construed as an unequivocal waiver by the Tribes. To the contrary, the Agreement contains a provision that expressly states the Tribes’ intent to retain their sovereign immunity when becoming a party to the Agreement. Section X(D) of the Agreement provides as follows: “Sovereign Immunity. The State of Wyoming, DFS, the Tribes and SATSS do not waive sovereign immunity by entering into this Contract, and specifically retain immunity and all defenses available to them as sovereigns pursuant to Wyo. Stat. Sec. 1-39-104(a) and all other applicable Tribal, Federal or State law.” App., vol. I at 156. Notwithstanding this explicit statement of the Tribes’ intent to retain their sovereign immunity, plaintiffs contend that entering the Agreement nonetheless constituted a waiver because in the Agreement the SATSS adopted the administrative rules and regulations of a state agency and agreed to use state forms. The fact that the Tribes agreed to act in accordance with state law to some degree and in essence to adopt state law is simply not an express waiver of their tribal sovereignty with respect to their actions taken under that law. The Supreme Court has held: “To say substantive state laws apply to off-reservation conduct, however, is not to say that a tribe no longer enjoys immunity from suit.... There is a difference between the right to demand compliance with state laws and the means available to en force them.” Kiowa Tribe of Okla. v. Mfg. Techn., Inc., 523 U.S. 751, 755, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998) (citation and quotation omitted). In sum, nothing in the material before us contains an express waiver of Tribal sovereignty. To the contrary, the only unequivocal statement by the Tribes on the matter is the provision explicitly stating their intent to retain their sovereignty. We thus conclude that the claims against SATSS and against Mssrs. Kennah and Lone Bear in their official capacities are barred. Ill Action Under Color of State Law A." } ]

[ { "docid": "20196614", "title": "", "text": "L.Ed.2d 981 (1998); Puyallup Tribe, Inc. v. Dep’t of Game, 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977). This immunity extends to tribal officials, so long as they are acting within the scope of their official capacities. Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir.1997); Burrell v. Armijo, 456 F.3d 1159, 1174 (10th Cir.2006); cf. Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670. Tribal immunity is similar, although not identical, to immunity afforded to states under the Eleventh Amendment. Compare Kiowa Tribe, 523 U.S. at 753-59, 118 S.Ct. 1700 (describing evolution of common law doctrine of tribal immunity) with Hans v. Louisiana, 134 U.S. 1, 11-15, 10 S.Ct. 504, 33 L.Ed. 842 (1890) (reading Eleventh Amendment to preclude suits by citizens against sovereign states). Tribes and states both enjoy immunity from suit by virtue of their status as pre-Constitu-tional sovereigns. See Santa Clara Pueblo, 436 U.S. at 56, 98 S.Ct. 1670 (describing tribes as “separate sovereigns pre-existing the Constitution”); Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (“States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution.... ”). The scope of tribal immunity, however, is more limited. See Plains Commerce Bank v. Long Family & Cattle Co., 554 U.S. 316, 327, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008) (noting that the “sovereignty the Indian tribes retain is of a unique and limited character” (internal quotation marks omitted)); Montana v. United States, 450 U.S. 544, 563, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) (observing that with their incorporation into the United States, “Indian tribes have lost many of the attributes of sovereignty”). Because tribal immunity is a matter of federal common law, not a constitutional guarantee, its scope is subject to congressional control and modification. See Kiowa Tribe, 523 U.S. at 759, 118 S.Ct. 1700 (recognizing plenary authority of Congress to alter tribal immunity); cf. United States v. Lara, 541 U.S. 193, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004) (upholding federal statute relaxing previously recognized bounds of tribal" }, { "docid": "6101453", "title": "", "text": "comply with certain federal laws, but we see no congressional abrogation of tribal sovereign immunity. To begin with, the regulation mentions the Age Discrimination Act of 1975, see 42 U.S.C. §§ 6101-6107, not the ADEA, see 29 U.S.C. §§ 621-34, which is the age discrimination statute invoked in Garcia’s complaint. Regardless of whether the substantive norms of the ICRA, the ADEA, and the Age Discrimination Act all apply to tribes, none of the laws abrogates tribal sovereign immunity from suit. The Supreme Court has so held with respect to the ICRA. See Santa Clara Pueblo, 436 U.S. at 59, 98 S.Ct. 1670. (“[S]uits against the tribe under the ICRA are barred by its sovereign immunity from suit.”). And in the absence of “any unequivocal expression of contrary legislative intent,” id,., we reach the same conclusion with respect to the ADEA and Age Discrimination Act. Neither statute makes any reference whatever to the “amenity of Indian tribes to suit.” Florida Paraplegic Ass’n. v. Miccosukee Tribe, 166 F.3d 1126, 1133 (11th Cir.1999) (finding no abrogation of tribal immunity under Title III of the Americans with Disabilities Act); cf. 42 U.S.C. § 2000d-7 (expressing congressional intent to waive state sovereign immunity to suit under the Age Discrimination Act); Lane v. Pena, 518 U.S. 187, 198-200, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (§ 2000d-7’s “ambiguous reference” to the existence of remedies under inter alia the Age Discrimination Act against ‘public ... entities]’ did not waive the Federal Government’s sovereign immunity). 2. Waiver of Immunity Even where Congress has not abrogated immunity, a tribe may voluntarily subject itself to suit by issuing a “clear” waiver. C & L Enters. v. Citizen Band Potawatomi Indian Tribe, 532 U.S. 411, 121 S.Ct. 1589, 1594, 149 L.Ed.2d 623 (2001). Garcia claims to have found a sufficient waiver in a “sue and be sued” clause in the AHA’s enabling Tribal Ordinance: The [Tribal] Council hereby gives its irrevocable consent to allowing the [AHA] to sue and be sued in its corporate name, upon any contract, claim or obligation arising out of its activities under this ordinance and hereby" }, { "docid": "6063233", "title": "", "text": "Sycuan Band of Mission Indians, 884 F.2d 416 (C.A.9 1989) (clause requiring arbitration of contractual disputes did not expressly waive Tribe’s imimjhty).418 We granted certiorari to resolve this conflict, 531 U.S. 956, 121 S.Ct. 377, 148 L.Ed.2d 291 (2000), and now reverse. II Kiowa, in which we reaffirmed the doctrine of tribal immunity, involved an off-reservation, commercial agreement (a stock purchase) by a federally recognized Tribe. The Tribe signed a promissory note agreeing to pay the seller $285,000 plus interest. The note recited: “Nothing in this Note subjects or limits the sovereign rights of the Kiowa Tribe of Oklahoma.” 523 U.S., at 753-754, 118 S.Ct. 1700. The Tribe defaulted, the seller sued on the note in state court, and the Tribe asserted sovereign immunity. We upheld the plea. Tribal immunity, we ruled in Kiowa, extends to suits on off-reservation commercial contracts. Id., at 754-760, 118 S.Ct. 1700. The Kiowa Tribe was immune from suit for defaulting on the promissory note, we held, because “Congress ha[d] not abrogated [the Tribe’s] immunity, nor ha[d] petitioner waived it.” Id., at 760, 118 S.Ct. 1700. Like Kiowa, this case arises out of the breach of a commercial, off-reservation contract by a federally recognized Indian Tribe. The petitioning contractor, C & L, does not contend that Congress has abrogated tribal immunity in this setting. The question presented is whether the Tribe has waived its immunity. To abrogate tribal immunity, Congress must “unequivocally” express that purpose. Santa. Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (citing United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)). Similarly, to relinquish its immunity, a tribe’s waiver must be “clear.” Oklahoma Tax Comm'n v. Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991). We are satisfied that the Tribe in this case has waived, with the requisite clarity, immunity from the suit C & L brought to enforce its arbitration award. The construction contract’s provision for arbitration and related prescriptions lead us to this conclusion. The arbitration^ clause requires" }, { "docid": "16567317", "title": "", "text": "as damages for breach of contract and various torts. Again, the tribal defendants moved to dismiss for lack of jurisdiction based on sovereign immunity. The District Court granted the motion with respect to Mr. Walton’s petition for a writ of habeas corpus but it denied the motion as to the remaining non-habeas claims. It reasoned that although Indian tribes are generally entitled to sovereign immunity under the Supreme Court’s decision in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), Mr. Walton’s lawsuit fell within the narrow exception to Santa Clara Pueblo established by this Court in Dry Creek, 623 F.2d 682. This appeal followed. II. DISCUSSION We review a question of tribal sovereign immunity de novo. Berrey v. Asarco, Inc., 439 F.3d 636, 643 (10th Cir.2006). Indian tribes possess the. same immunity from suit traditionally enjoyed by sovereign powers. Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670. As with other forms of sovereign immunity, tribal immunity “is subject to the superior and plenary control of Congress.” Id. Accordingly, absent explicit waiver of immumty or express authorization by Congress, federal courts do not have jurisdiction to entertain suits against an Indian tribe. Id. at 58-59, 98 S.Ct. 1670; Ordinance 59 Ass’n v. United States Dep’t of the Interior Sec’y, 163 F.3d 1150, 1153 (10th Cir.1998). Mr. Walton argues that the District Court has jurisdiction pursuant to the ICRA, 25 U.S.C. §§ 1301-1303, and pursuant to the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450-450n (“ISDEAA”). We address each statute in turn. A. The Indian Civil Rights Act In Santa Clara Pueblo, the Supreme Court held that the ICRA does not authorize the maintenance of suits against a tribe nor does it constitute a waiver of sovereignty. See 436 U.S. at 59, 98 S.Ct. 1670. Further, the ICRA does not create a private cause of action against a tribal official. Id. at 72, 98 S.Ct. 1670. The only exception is that federal courts do have jurisdiction under the ICRA over habeas proceedings. Id. at 58, 70, 98 S.Ct. 1670 (citing 25" }, { "docid": "10674173", "title": "", "text": "of the federal policies behind tribal sovereign immunity. See Breakthrough, 629 F.3d at 1188 (explaining that the policies underlying tribal sovereign immunity include “preservation of tribal cultural autonomy, preservation of tribal self-determination, and promotion of commercial dealings between Indians and non-Indians.”) (internal marks and citations omitted); Am. Indian Agric. Credit Consortium, Inc. v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1378 (8th Cir.1985) (“Indian tribes enjoy sovereign immunity because ... immunity is thought necessary to promote the federal policies of tribal self-determination, economic development, and cultural autonomy.”). Further supporting the conclusion that the purposes of sovereign immunity are served by extending the tribes’ immunity to Great Plains is the fact that Great Plains enters into contracts under the ISDEAA, an act whose very purpose was to promote tribal autonomy and self-determination. See 25 U.S.C. § 450(a); FGS Constructors, Inc. v. Carlow, 64 F.3d 1230, 1234 (8th Cir.1995) (“The ISDEAA promotes the long-standing federal policy of encouraging Indian self-determination, giving Indian tribes control over the administration of federal programs benefitting Indians.”). C) Affect of Great Plains’ Sovereign Immunity on J.L. Ward’s Claims The Court’s determination that Great Plains is entitled to sovereign immunity does not necessarily mean that all of J.L. Ward’s claims should be dismissed. An immune tribal entity may still be subject to suit if “Congress has authorized the suit or the [tribal entity] has waived its immunity.” See Kiowa Tribe v. Mfg. Technologies, Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). J.L. Ward asserts the existence of both of these conditions, contending that Congress has authorized copyright suits against Indian tribes and that the dispute resolution clause in the 2007 and 2010 contracts waives Great Plains’ sovereign immunity. The Court addresses these arguments in turn. 1. Congressional Waiver of Tribal Sovereign Immunity Through Copyright Act “It is settled that a waiver of sovereign immunity cannot be implied but must be unequivocally expressed.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (internal quotation marks omitted); see also N. States Power Co. v. Prairie Island Mdewakanton Sioux Indian" }, { "docid": "2520957", "title": "", "text": "states may waive their sovereign immunity, others will not. While some states may honor the federal law, others will not. In the absence of judicial recognition that the uniformity requirement in the Constitution mandates that Congress has the right to abrogate the sovereign immunity of all governments operating within the United States, we will be back at our historical starting point. For these reasons, I would reverse the decision of the bankruptcy court and remand with instructions to avoid the lien of the Cherokee Nation if the bankruptcy court found that the other requirements of § 522(f) were, established. . Future statutory references are to Title 11 of the United States Code unless otherwise noted. . See Osage Tribal Council v. United States Dep’t of Labor, 187 F.3d 1174, 1180 n. 1 (10th Cir.1999) (stating \"[t]he issue of whether immunity is validly asserted arguably precedes the issue of whether Congress has abrogated immunity.”). . Nelson v. La Crosse County Dist. Atty (In re Nelson), 301 F.3d 820, 825 (7th Cir.2002). . Kiowa Tribe v. Manufacturing Tech., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). . In Seminole Tribe v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court stated that a statute attempting to abrogate the States’ sovereign immunity will pass constitutional muster only if Congress has unequivocally expressed its intent to abrogate the immunity and if Congress has acted pursuant to a valid exercise of power. . Kiowa Tribe, 523 U.S. at 754, 118 S.Ct. 1700. . Id. at 759, 118 S.Ct. 1700; Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). . Osage, 187 F.3d at 1181. . See, e.g., id. at 1182 (finding that Congress waived tribal sovereign immunity from suit under the whistle blower provision of Safe Drinking Water Act when, in establishing a uniform national scheme of regulation of the universal subject of drinking water, it granted agency jurisdiction over all \"persons,” defined \"persons” to include \"municipality,” and defined \"municipality” to include \"Indian tribes.”). . See Jicarilla Apache Tribe" }, { "docid": "19340531", "title": "", "text": "importer during the preceding calendar month.” (emphasis added). 2. Counts IX and X — Sovereign immunity bars enforcement of the Act against Winnebago Tribe and the individual plaintiffs. Plaintiffs argue that even if HCI is a “distributor of first receipt” as defined by the Act, defendants are powerless to enforce the Act against them due to tribal and official sovereign immunity. Plaintiff Winnebago Tribe maintains that Indian tribes retain sovereign immunity from suit absent either an explicit waiver of immunity or express authorization of the suit by Congress. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). This immunity extends to activities off the reservation. See Kiowa Tribe of Oklahoma v. Manufacturing Techs., Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). See also Aircraft Equip. Co. v. Kiowa Tribe of Oklahoma, 975 P.2d 450 (Okla.1998) (holding that seizure of tribal property is barred by sovereign immunity after the Supreme Court’s ruling in Manufacturing Technologies). The individual plaintiffs further argue that they are entitled to sovereign and official immunity because at all times they were tribal officials acting within the scope of their official duties. See Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir.1997) (noting that tribal sovereign immunity extends to tribal officials against claims for activities undertaken in their official capacity). In response, defendants maintain that plaintiffs do not have a likelihood of success on the merits as to this issue because defendants have not taken any action directly against the Winnebago Tribe and therefore they have not infringed upon tribal sovereign immunity. Defendants also contend that criminal actions taken against the individual plaintiffs are valid because the individual plaintiffs cannot commit a crime (tax evasion) and then claim sovereign immunity. Further, defendants argue that states may employ alternatives to bringing direct action against tribes in cases such as this by bringing an action under Ex Parte Young, 209 U.S. 123, 128, 28 S.Ct. 441, 52 L.Ed. 714 (1908), or collecting taxes on the product from the wholesalers by seizing the product or assessing the tax directly on" }, { "docid": "9990326", "title": "", "text": "the Chickasaw Nation, or any agency thereto, other than property or income of the Corporation specifically and in writing duly mortgaged, pledged or assigned as collateral for the debts or liabilities of the Corporation related to the lease, contract, agreement or mortgage instrument to be enforced. The authority provided herein is not intended to nor shall it be construed to waive the immunity of the Corporation, the Chickasaw Nation, or any agency thereof for any other purpose with respect to any claim or other matter not specifically mentioned herein, and is not intended to, nor shall it extend to the benefit of, any person other than the parties to such leases, contracts, agreements or mortgage instruments or their successors or assigns. Defendant’s Ex. 1 (emphasis added). B. Discussion Defendant argues that tribal sovereign immunity bars this lawsuit because Defendant, a § 503 corporation, is wholly owned by a federally recognized tribe. Defendant also argues that tribal sovereign immunity over the Title VII and ADEA claims has not been unequivocally waived by the Chickasaw Nation and Congress has not unequivocally abrogated tribal sovereign immunity with respect to those statutory claims. The party who seeks to invoke federal jurisdiction, in this case the Plaintiff, bears the burden of establishing that federal jurisdiction is proper. United States v. Bustillos, .31 F.3d 931, 933 (10th Cir.1994). Tribal sovereign immunity is a matter of subject matter jurisdiction which can be challenged in a Fed.R.Civ.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998); St. Stephen’s Indian High School, 264 F.3d at 1302. Tribal sovereign immunity can be waived only if a tribe unequivocally waives its tribal sover eign immunity or Congress unequivocally abrogates tribal sovereign immunity. St Stephen’s Indian High School, 264 F.3d at 1304 (quoting Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir.1997)). Furthermore, the courts construe statutes liberally in favor of Native Americans. Montana v. Blackfeet Tribe, 471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985). 1. Does Defendant" }, { "docid": "9990327", "title": "", "text": "Congress has not unequivocally abrogated tribal sovereign immunity with respect to those statutory claims. The party who seeks to invoke federal jurisdiction, in this case the Plaintiff, bears the burden of establishing that federal jurisdiction is proper. United States v. Bustillos, .31 F.3d 931, 933 (10th Cir.1994). Tribal sovereign immunity is a matter of subject matter jurisdiction which can be challenged in a Fed.R.Civ.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998); St. Stephen’s Indian High School, 264 F.3d at 1302. Tribal sovereign immunity can be waived only if a tribe unequivocally waives its tribal sover eign immunity or Congress unequivocally abrogates tribal sovereign immunity. St Stephen’s Indian High School, 264 F.3d at 1304 (quoting Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir.1997)). Furthermore, the courts construe statutes liberally in favor of Native Americans. Montana v. Blackfeet Tribe, 471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985). 1. Does Defendant Enjoy Tribal Sovereign Immunity Due to its Status as a § 50S Corporation Wholly Owned by the Chickasaw Nation? a. Application of Tribal Sovereign Immunity when a Now-Tribal Plaintiff Brings Suit against a Tribal Commercial Enterprise Operating in the Open Market Outside of Tribal Lands Defendant contends that it enjoys tribal sovereign immunity because it is a § 503 corporation wholly owned by a tribe. Plaintiff argues, however, that tribal sovereign immunity does not bar lawsuits brought by non-tribal plaintiffs against tribal commercial enterprises operating in the open market outside of tribal lands. To support this argument, Plaintiff cites to Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir.1985); Chickasaw Nation v. United States, 1998 WL 975690 (E.D.Okla.1998); Myrick v. Devil’s Lake Sioux Manufacturing Corp., 718 F.Supp. 753 (D.N.D.1989); and Roberson v. Confederated Tribes, 103 L.R.R.M. 2749 (D.Or. 1980). Additionally, Plaintiff cites to New Mexico case law. The issue in Coeur d’Alene was whether the Occupational Safety and Health Act, a statute of general applicability silent as to its application to tribes, applied" }, { "docid": "2520958", "title": "", "text": "Tech., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). . In Seminole Tribe v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court stated that a statute attempting to abrogate the States’ sovereign immunity will pass constitutional muster only if Congress has unequivocally expressed its intent to abrogate the immunity and if Congress has acted pursuant to a valid exercise of power. . Kiowa Tribe, 523 U.S. at 754, 118 S.Ct. 1700. . Id. at 759, 118 S.Ct. 1700; Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). . Osage, 187 F.3d at 1181. . See, e.g., id. at 1182 (finding that Congress waived tribal sovereign immunity from suit under the whistle blower provision of Safe Drinking Water Act when, in establishing a uniform national scheme of regulation of the universal subject of drinking water, it granted agency jurisdiction over all \"persons,” defined \"persons” to include \"municipality,” and defined \"municipality” to include \"Indian tribes.”). . See Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1339 n. 11 (10th Cir.1982) (finding that tribal sovereign immunity did not preclude the application of laches and similar defenses to the tribe's National Environmental Policy Act claims on the grounds that the concerns addressed by NEPA do not relate to the rights of Indians per se, but instead advance substantive goals for the nation as a whole by \"essentially procedural” requirements). . In re National Cattle Congress, 247 B.R. 259, 267 (Bankr.N.D.Iowa 2000). . 11 U.S.C. § 101(27). . Turning Stone Casino v. Vianese (In re Vianese), 195 B.R. 572, 576 (Bankr.N.D.N.Y.1995); In re Sandmar Corp., 12 B.R. 910, 916 (Bankr.D.N.M.1981) (finding that an Indian tribe was a governmental unit under the § 101 definition in effect). See also In re Greene, 980 F.2d 590, 597-98 (9th Cir.1992) (assuming without deciding that Indian tribes ' were governmental units for the purposes of the version of § 106 then in effect); Warfield v. Navajo Nation (In re Davis Chevrolet, Inc.), 282 B.R. 674, 683 n. 5 (Bankr.D.Ariz.2002) (stating in a" }, { "docid": "16616739", "title": "", "text": "sovereignty, like all others, is subject to the superior and plenary control of Congress,” which may limit or abrogate a tribe’s immunity from suit. Id. Nevertheless, “[i]t is settled that a waiver of sovereign immunity cannot be implied but must be unequivocally expressed.” Id. (internal quotations omit ted); see also Kiowa Tribe of Ohio. v. Manufacturing Techs., Inc., — U.S, --, ——, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998) (reaffirming doctrine of tribal immunity and stating Congress can alter the limits of tribal immunity through “explicit legislation”). In Santa Clara. Pueblo, a female member of an Indian tribe invoked the Indian Civil Rights Act of 1968 (“ICRA”), 25 U.S.C. §§ 1301-1303, to challenge a tribal ordinance denying tribal membership to children of female members who married outside the tribe while extending membership to children of male members who married non-members. See 436 U.S. at 51, 98 S.Ct. 1670. The threshold issue before the Supreme Court was whether the ICRA authorizes suits for declaratory or equitable relief against a tribe or tribal officer to enforce its substantive provisions. See id. at 51-52, 98 S.Ct. 1670. The Court first considered whether an ICRA suit against the tribe was barred by tribal immunity. After setting out the basic rule that any waiver of tribal immunity must be unequivocally expressed, the Court stated: “Nothing on the face of Title I of the ICRA purports to subject tribes to the jurisdiction of the federal courts in civil actions for in-junctive or declaratory relief.” Id. at 59, 98 S.Ct. 1670. The only remedial provision expressly supplied in the ICRA is a provision allowing a habeas corpus action to be brought by “any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.” 25 U.S.C. § 1303. The Court noted that, “since the respondent in a habeas corpus action is the individual custodian of the prisoner, the [provision allowing a federal habeas corpus action] can hardly be read as a general waiver of the tribe’s sovereign immunity.” 436 U.S. at 59, 98 S.Ct. 1670 (citation omitted)." }, { "docid": "16616738", "title": "", "text": "was waived by the UPA. The UDC argues the district court properly found that, based on the “plain language” of the joint management provisions of the UPA, the Tribe’s immunity from suit was waived for the adjudication of issues concerning the indivisible assets. Alternatively, the UDC contends that the “sue and be sued” provision in the Tribe’s corporate charter constitutes an express waiver by the Tribe of its immunity in this case. This court reviews de novo the legal question of whether a party can assert immunity. See Fletcher v. United States, 116 F.3d 1315, 1323-24 (10th Cir.1997). A. Congressional Waiver of Tribal Immunity in the UPA In Santa Clara, Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), the Supreme Court established the rule for determining whether a tribe’s immunity from suit has been waived. The Court stated, “Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” Id. at 58, 98 S.Ct. 1670. The Court recognized that “[tjhis aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress,” which may limit or abrogate a tribe’s immunity from suit. Id. Nevertheless, “[i]t is settled that a waiver of sovereign immunity cannot be implied but must be unequivocally expressed.” Id. (internal quotations omit ted); see also Kiowa Tribe of Ohio. v. Manufacturing Techs., Inc., — U.S, --, ——, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998) (reaffirming doctrine of tribal immunity and stating Congress can alter the limits of tribal immunity through “explicit legislation”). In Santa Clara. Pueblo, a female member of an Indian tribe invoked the Indian Civil Rights Act of 1968 (“ICRA”), 25 U.S.C. §§ 1301-1303, to challenge a tribal ordinance denying tribal membership to children of female members who married outside the tribe while extending membership to children of male members who married non-members. See 436 U.S. at 51, 98 S.Ct. 1670. The threshold issue before the Supreme Court was whether the ICRA authorizes suits for declaratory or equitable relief against a tribe or tribal officer to enforce its" }, { "docid": "8046514", "title": "", "text": "11, 1997. . In light of our conclusion in part II.B, infra, that the State has failed to state a claim against Chairman Billie, it might be argued that the State has likewise failed to state a claim against the Tribe and therefore that it is unnecessary for us to determine whether the Tribe's sovereign immunity bars this suit. This argument, however, ignores the fundamentally jurisdictional nature of a claim of sovereign immunity. See, e.g., United States v. County of Cook, Ill., 167 F.3d 381, 390 (7th Cir.1999) (noting the Supreme Court's “thoroughgoing equation of sovereign immunity to a jurisdictional shortcoming”); Fletcher v. United Slates, 116 F.3d 1315, 1326 (10th Cir.1997) (holding that the Osage Tribal Council and its members “properly and adequately challenged federal jurisdiction on the ground of tribal sovereign immunity”); Kreig v. Prairie Island Dakota Sioux (In re Prairie Island Dakota Sioux), 21 F.3d 302, 305 (8th Cir.1994) (finding that tribal \"sovereign immunity is a jurisdictional consideration separate from subject matter jurisdiction”); Maynard v. Narragansett Indian Tribe, 984 F.2d 14, 16 (1st Cir.1993) (holding that tribal immunity was not waived or abrogated, and thus that district court correctly dismissed action for lack of jurisdiction); Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th Cir.1989). Because of its jurisdictional nature, we must consider the Tribe’s claim of sovereign immunity before reaching the issue of failure to state a claim. Cf. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-62, 98 S.Ct. 1670, 1677-79, 56 L.Ed.2d 106 (1978) (deciding first that suit against tribe was barred by sovereign immunity, and then finding that plaintiffs had no implied right of action against tribal official). . See, e.g., Mescalero Apache Tribe v. New Mexico, 131 F.3d 1379, 1385-86 (10th Cir.1997) (citing cases regarding waiver of tribal immunity as support for proposition that Congress abrogated tribal immunity in IGRA); Ross v. Flandreau Santee Sioux Tribe, 809 F.Supp. 738, 744-45 (D.S.D.1992) (conflating issues of whether tribe waived sovereign immunity by engaging in gaming under IGRA and whether tribe's immunity extended to action seeking prospective equitable relief). Some of" }, { "docid": "23606212", "title": "", "text": "60 S.Ct. 653, 84 L.Ed. 894 (1940). It is also well established that Congress possesses plenary control over tribal sovereignty, and therefore is “always ... at liberty to dispense with ... tribal immunity or to limit it.” 498 U.S. at 510, 111 S.Ct. 905; see, e.g., 25 U.S.C. § 450f(c)(3) (abrogating tribal immunity in the context of certain mandatory liability insurance policies provided for tribes by the Department of Health and Human Services). In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), the Supreme Court held that congressional abrogation of tribal immunity, like congressional abrogation of other forms of sovereign immunity, “cannot be implied but must be unequivocally ex pressed.” Id. at 58, 98 S.Ct. 1670 (internal quotation marks and citations omitted). The plaintiff in Santa Clara Pueblo, a Pueblo member, sued the tribe and its governor alleging that a tribal ordinance violated Title I of the Indian Civil Rights Act of 1968, 25 U.S.C. § 1302(8) (the “ICRA”) (guaranteeing tribal members the equal protection of the laws of their tribe). See id. at 51, 98 S.Ct. 1670. The Supreme Court ruled that the suit was barred by the tribe’s immunity because Congress had not explicitly abrogated this immunity in the ICRA. See id. at 58-59, 98 S.Ct. 1670. “Nothing on the face of Title I of the ICRA,” the Court reasoned, “purports to subject tribes to the jurisdiction of the federal courts in civil actions for injunctive or declaratory relief.” Id. at 59, 98 S.Ct. 1670. We have since applied the rule of Santa Clara Pueblo in this circuit. See Fluent v. Salamanca Indian Lease Auth., 928 F.2d 542, 545-46 (2d Cir.1991) (holding that the Seneca Nation is immune from suit under a 1875 Act of Congress regulating the lease of tribal lands because the Act “fails to unambiguously express Congress’ intent to subject the Nation to lawsuits”). In the recent case of Kiowa Tribe v. Manufacturing Techs., Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998), the Supreme Court clarified that a tribe’s immunity extends to its off-reservation commercial" }, { "docid": "10674174", "title": "", "text": "Sovereign Immunity on J.L. Ward’s Claims The Court’s determination that Great Plains is entitled to sovereign immunity does not necessarily mean that all of J.L. Ward’s claims should be dismissed. An immune tribal entity may still be subject to suit if “Congress has authorized the suit or the [tribal entity] has waived its immunity.” See Kiowa Tribe v. Mfg. Technologies, Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). J.L. Ward asserts the existence of both of these conditions, contending that Congress has authorized copyright suits against Indian tribes and that the dispute resolution clause in the 2007 and 2010 contracts waives Great Plains’ sovereign immunity. The Court addresses these arguments in turn. 1. Congressional Waiver of Tribal Sovereign Immunity Through Copyright Act “It is settled that a waiver of sovereign immunity cannot be implied but must be unequivocally expressed.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (internal quotation marks omitted); see also N. States Power Co. v. Prairie Island Mdewakanton Sioux Indian Cmty., 991 F.2d 458, 462 (8th Cir.1993) (“Congress has the power to statutorily waive a tribe’s sovereign immunity. The Supreme Court pointed out that courts should tread lightly in the absence of clear indications of legislative intent when determining whether a particular federal statute waives tribal sovereign immunity.”) (internal quotation marks omitted). J.L. Ward argues that the Copyright Act waives tribal sovereign immunity because it is a statute of general applicability. “The Supreme Court has stated that ‘general acts of Congress apply to Indians as well as to all others in the absence of a clear expression to the contrary.’” E.E.O.C. v. Fond du Lac Heavy Equip. & Const., 986 F.2d 246, 248 (8th Cir.1993) (citing Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 120, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960)). That a general federal statute applies to Indian tribes does not mean that Congress has waived tribal sovereign immunity for purposes of private actions to enforce the statute, however. Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 357 (2nd Cir.2000) (“[T]he" }, { "docid": "15459407", "title": "", "text": "subject matter jurisdiction. Sierra Club v. Lujan, 972 F.2d 312, 314 (10th Cir.1992). “Indian tribes are ‘domestic dependent nations’ that exercise inherent sovereign authority over their members and territories.” Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 509, 111 S.Ct. 905, 909, 112 L.Ed.2d 1112 (1991) (internal citation omitted). As an aspect of this sovereign immunity, suits against tribes are barred in the absence of an unequivocally expressed waiver by the tribe or abrogation by Congress. Id.; Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59, 98 S.Ct. 1670, 1676-77, 56 L.Ed.2d 106 (1978). The Osage Tribe itself is not named as a defendant in this case. However, Individual Plaintiffs sued the Tribe’s principal governing body Defendant Osage Tribal Council as well as each individual member, and Defendants Charles Tillman, Principal Chief and Geoffrey Standing Bear, Assistant Principal Chief in their official capacities. Because the relief requested by Individual Plaintiffs, concerning rights to vote in future tribal elections and hold tribal office, if granted, would run against the Tribe itself, the Tribe’s sovereign immunity protects these defendants in their official capacities. See Kenai Oil and Gas, Inc. v. Department of the Interior, 522 F.Supp. 521, 531 (D.Utah 1981) (“Tribal immunity may not be evaded by suing tribal officers _”), aff'd, 671 F.2d 383 (10th Cir.1982). This principle has been applied to protect state and federal officials sued in their official capacity. See, e.g., Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (state); Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 689-90, 69 S.Ct. 1457, 1461-62, 93 L.Ed. 1628 (1949) (federal). Because there is no reason to treat tribal immunity differently from state or federal immunity in this sense, tribal immunity protects tribal officials against claims in their official capacity. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 148, 102 S.Ct. 894, 907, 71 L.Ed.2d 21 (1982) (employing same rules for waiver of tribal immunity as are employed for waiver of state and federal immunity because no principled reason required different treatment). Thus, Tribal Defendants were entitled" }, { "docid": "20196613", "title": "", "text": "pursuant to its legal services contract with the Thlopthloceo. Accordingly, the exhaustion requirement would serve no purpose, and there is no need to require further tribal court litigation before the exercise of federal jurisdiction in this case. III. Judge Stidham asserts he is entitled to both sovereign and judicial immunity “because he acted within the scope of his authority as a tribal court judge.” Aplt. Br. at 1. We review de novo the district court’s denial of tribal sovereign immunity, Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007, 1009 (10th Cir.2007), and its denial of judicial immunity, see Malik v. Arapahoe Cnty. Dept. of Soc. Servs., 191 F.3d 1306, 1313 (10th Cir.1999). A. “Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); accord Berrey v. Asarco, Inc., 439 F.3d 636, 643 (10th Cir.2006); see Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 754-60, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998); Puyallup Tribe, Inc. v. Dep’t of Game, 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977). This immunity extends to tribal officials, so long as they are acting within the scope of their official capacities. Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir.1997); Burrell v. Armijo, 456 F.3d 1159, 1174 (10th Cir.2006); cf. Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670. Tribal immunity is similar, although not identical, to immunity afforded to states under the Eleventh Amendment. Compare Kiowa Tribe, 523 U.S. at 753-59, 118 S.Ct. 1700 (describing evolution of common law doctrine of tribal immunity) with Hans v. Louisiana, 134 U.S. 1, 11-15, 10 S.Ct. 504, 33 L.Ed. 842 (1890) (reading Eleventh Amendment to preclude suits by citizens against sovereign states). Tribes and states both enjoy immunity from suit by virtue of their status as pre-Constitu-tional sovereigns. See Santa Clara Pueblo, 436 U.S. at 56, 98 S.Ct. 1670 (describing tribes as “separate sovereigns pre-existing the Constitution”); Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240," }, { "docid": "23674911", "title": "", "text": "scant support elsewhere. We respectfully decline to adopt it and hold instead that, as long as federal subject-matter jurisdiction exists, a defense predicated on tribal sovereign immunity is susceptible to direct adjudication in the federal courts, without reference to the tribal exhaustion doctrine. See TTEA v. Ysleta Del Sur Pueblo, 181 F.3d 676, 680-81, 683-84 (5th Cir. 1999); Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d 803, 812-15 (7th Cir.1993). We believe that this conclusion flows naturally from the reality that the sovereignty of Indian tribes is subject to congressional control, with the result that tribal sovereign immunity is necessarily a matter of federal law. See Kiowa Tribe v. Manufacturing Technologies, 523 U.S. 751, 759, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998); Osage Tribal Council v. United States Dep’t of Labor, 187 F.3d 1174, 1180 (10th Cir.1999). We turn, then, to the merits of the Authority’s immunity defense. B Tribal sovereign immunity “predates the birth of the Republic.” Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 694 (1st Cir.1994). The immunity rests on the status of Indian tribes as autonomous political entities, retaining their original natural rights with regard to self-governance. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559, 8 L.Ed. 483 (1832). The Authority, as an arm of the Tribe, enjoys the full extent of the Tribe’s sovereign immunity. See Dillon v. Yankton Sioux Tribe Hous. Auth., 144 F.3d 581, 583-84 (8th Cir.1998); Weeks Constr., Inc. v. Oglala Sioux Hous. Auth., 797 F.2d 668, 670-71 (8th Cir.1986). Therefore, we shall not distinguish between the Tribe and the Authority in discussing concepts such as tribal immunity and tribal exhaustion. Generally speaking, the doctrine of tribal sovereign immunity precludes a suit against an Indian tribe except in instances in which Congress has abrogated that immunity or the tribe has foregone it. See Kiowa Tribe, 523 U.S. at 754, 118 S.Ct. 1700. The parties (who agree on little else) concur that Congress has not abrogated the Tribe’s immunity vis-a-vis this suit. The" }, { "docid": "18015979", "title": "", "text": "to his guardian”). As sovereigns, Indian tribes enjoy immunity against suits. Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998); Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991); Santa Clara Pueblo, 436 U.S. at 58-59, 98 S.Ct. 1670; Puyallup Tribe, Inc. v. Dep’t of Game, 433 U.S. 165, 172, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977); United States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 512, 60 S.Ct. 653, 84 L.Ed. 894 (1940); Wichita & Affiliated Tribes v. Hodel, 788 F.2d 765, 771 (D.C.Cir.1986). This immunity flows from a tribe’s sovereign status in much the same way as it does for the States and for the federal government. See Seminole Tribe v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (noting the “presupposition ... that ‘ “[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent” ’ ”) (quoting Hans v. Louisiana, 134 U.S. 1, 13, 10 S.Ct. 504, 33 L.Ed. 842 (1890) (quoting The FedeRalist No. 81 (Alexander Hamilton) (Clinton Ros-siter ed., 1961))). Congress’s power to limit the scope of a tribe’s sovereignty extends to tribal sovereign immunity. “This aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress.” Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670; see also Okla. Tax Comm’n, 498 U.S. at 510, 111 S.Ct. 905 (“Congress has always been at liberty to dispense with such tribal immunity or to limit it.”). But abrogation of tribal sovereign immunity requires an ex plicit and unequivocal statement to that effect. C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe, 532 U.S. 411, 418, 121 S.Ct. 1589, 149 L.Ed.2d 623 (2001) (“To abrogate tribal immunity, Congress must ‘unequivocally’ express that purpose.”) (quoting Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670); Cherokee Nation, 117 F.3d at 1498 (“Any waiver of a tribe’s sovereign immunity, whether by Congress or by the" }, { "docid": "14727103", "title": "", "text": "federal officials, relying on the doctrine of qualified immunity. Plaintiffs appeal. We affirm, although in some respects on grounds different from those relied on by the trial court. I. A. Suit Against the Tribe The district court ruled that plaintiffs’ suit against the Tribe is barred by sovereign immunity. This doctrine, “which recognizes the sovereignty of Indian tribes and seeks to preserve their autonomy, protects tribes from suits in federal and state courts.” Wichita & Affiliated Tribes of Oklahoma v. Hodel, 788 F.2d 765, 771 (D.C.Cir.1986). The Supreme Court has stated unequivocally that Indian tribes possess “the common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106 (1978). This immunity can be waived both by tribal consent, see Merrion v. Jicarilla Apache Tribe, 617 F.2d 537 (10th Cir.1980) (en banc), aff'd on other grounds, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982), and by Congressional action, see Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. at 1677. However, “[i]t is settled that a waiver of sovereign immunity ‘cannot be implied but must be unequivocally expressed.’ ” Id. Plaintiffs make three arguments in an attempt to overcome the jurisdictional bar of sovereign immunity. First, plaintiffs assert that their claims under Title I of the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301-1303 (1982 & Supp. IV 1986), should not have been dismissed because the ICRA, as interpreted by this court in Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981), deprives the Tribe of immunity from suit under its provisions. Plaintiffs alternatively urge that the Tribe waived its immunity to suit pursuant to the ICRA by virtue of a provision in the Cherokee Constitution. Finally, plaintiffs argue that the Tribe is amenable to suit under the various civil rights acts because the Treaty of 1866 limits the Tribe’s sovereign power and, concomitantly, limits the scope of protection from suit afforded by sovereign immunity. Santa Clara" } ]

[ { "docid": "23551505", "title": "", "text": "SELYA Circuit Judge. A federal grand jury charged defendant-appellant Stephen J. Staula, in relevant part, with being a felon in possession of a firearm (count 1) and ammunition (count 2), and with receiving a stolen firearm (count 3). See 18 U.S.C. § 922(g)(1), (j). Following a five-day trial, the petit jury convicted the appellant on all three counts. The court imposed an incarcerative sentence. In this appeal, Staula labors to convince us that the district court thrice erred in denying his motions to (i) dismiss the indictment for want of a speedy trial, (ii) suppress evidence, and (iii) direct judgment of acquittal. We are not persuaded that any error occurred. I Background We sketch the facts in the light most hospitable to the jury’s verdict. See United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992), cert. denied, 506 U.S. 1063, 113 S.Ct. 1005, 122 L.Ed.2d 154 (1993). During the early evening of September 13, 1993, officer David Tyrie of the Hanover police department stopped a pickup truck for patent violations of the state motor vehicle code. See Mass.Gen.L. ch. 90, § 6 (requiring, inter alia, a front license plate on every commercial vehicle); id. § 7 (requiring, inter alia, operable brake lights). The appellant proved to be the driver and registered owner of the ill-equipped vehicle. A female companion named Myriah Morse, later to become Staula’s wife, occupied the passenger’s seat. Tyrie testified that he smelled burnt marijuana when he first approached the driver’s side window to demand a registration certificate and operator’s license. He then retreated to his cruiser with the documents and called for backup. After two other officers arrived, Tyrie revisited the vehicle and in quired whether the occupants had been smoking marijuana. He also asked whether they had any marijuana in the truck. Both Staula and Morse answered the queries in the negative. Apparently unconvinced by these disclaimers and by Morse’s volunteered statement that she recently had burned incense in the vehicle, Tyrie sought the appellant’s consent to search the truck. After having been rebuffed, he ordered the appellant to alight, searched the driver’s side" } ]

[ { "docid": "1392196", "title": "", "text": "this procedural default, we could still, as a matter of discretion, review the argument for plain error. See United States v. Taylor, 54 F.3d 967, 972 (1st Cir.1995). But so detailed a review is unnecessary here, for there is no error, plain or otherwise. The appellant’s theory overlooks a critical component of IEEPA’s framework. Among other things, IEEPA expressly confers on the President the power to prohibit commercial transactions with certain foreign nations “with respect to any property ... subject to the jurisdiction of the United States.” 50 U.S.C. § 1702(a)(1). The computer equipment around which the conspiracy centered was stored in Massachusetts and unquestionably subject to the jurisdiction of the United States. Accordingly, as long as either McNeil or Sullivan knew the locus of the equipment and knew that U.S. law prohibited its export to Libya, the ensuing agreement with the appellant had an unlawful design sufficient to animate the federal conspiracy statute. In the case at hand, the government adduced ample proof of both propositions. The record contains • abundant evidence that McNeil, at least, was aware óf U.S. export restrictions and purposefully sought to evade them. Of particular note are her successful efforts to coerce Rucker into signing an SED that falsely described the ultimate destination of the goods and her countermanding of the suggestion that the goods be discharged in Antwerp. In addition, the nisi prius roll shows beyond hope of contradiction that the appellant performed an overt act in furtherance of the conspiracy when he purchased the equipment from NEXL in Massachusetts and attempted to ship it to Libya. McKeeve’s purchase supplied the final piece of proof needed to ground a conviction on the conspiracy count. See Ford v. United States, 273 U.S. 593, 620, 47 S.Ct. 531, 540, 71 L.Ed. 793 (1927) (holding that, when a conspiracy “was directed to violation of the United States law within the United States by men within and without it, and everything done was at the procuration and by the agency of each for the other in pursuance of the conspiracy ■... all are guilty of the offense" }, { "docid": "1392203", "title": "", "text": "of McKeeve’s state of mind or in its refusal to exclude the proffer under Fed.R.Evid. 403. The relevancy objection requires scant comment. Fed.R.Evid. 401 deems relevant evidence that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The instant indictment charged the appellant with knowingly and willfully violating, and conspiring to violate, IEEPA. His state of mind, assessable only by indirect proof, see United States v. St. Michael’s Credit Union, 880 F.2d 579, 600 (1st Cir.1989), was of critical importance to the resolution of these charges. When, as now, the prosecution offers evidence bearing on an inherently subjective inquiry, the relevancy threshold is at its lowest. See United States v. Tierney, 760 F.2d 382, 387 (1st Cir.1985). Seen in this light, Judge Keeton reasonably could conclude — as, indeed, he did — that McKeeve’s knowledge of the likely end use of the computer equipment tended to make less probable his state-of-mind defense. Hence, the judge did not err in admitting the statement. The Rule 403 objection is similarly unavailing. That rule directs a trial court to exclude relevant evidence if, inter alia, “its probative value is substantially outweighed by the danger of unfair prejudice.” But almost all evidence is meant to be prejudicial — why else would a party seek to introduce it? — and it is only unfairly prejudicial evidence that must be banished. See United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989). Although the Lane testimony may have prejudiced the appellant in the sense that it fit, tongue and groove, into the prosecution’s theory of the case, there is nothing unfair about the jury’s weighing of it for the limited purpose of determining the appellant’s state of mind. For this reason, we decline the appellant’s invitation to second-guess the district judge’s evidentiary gravi-metry. See Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir.1988) (“Only rarely — and in extraordinarily compelling circumstances — will we, from the vista of a cold" }, { "docid": "1392201", "title": "", "text": "that, while in the United States, the appellant sent Sullivan a memo that advised Sullivan to use extreme caution in contacting him and to be very careful what, he said in any such communication. In light of this evidentiary predicate, the district court had a reasonable basis for concluding that, more likely than not, McKeeve and Sullivan were coconspirators and that Sullivan’s comments to Redpath were made during and in furtherance of the conspiracy. Consequently, the decision to admit Sullivan’s hearsay statements under the coconspirator exception did not constitute an abuse of discretion. B. Admission of Lane’s Testimony. During trial, Eric Lane, a British customs official, testified that the appellant spoke to him anent DTI’s earlier warning that virtually all computers sent to Libya ended up in arms factories. The appellant objected to this testimony on relevancy grounds and added that, to the extent the testimony might otherwise be admissible, it was unduly prejudicial. He argued then, and reasserts now, that since U.S. law bans the export of any product (except certain humanitarian aid) to any Libyan entity, the fact that a DTI official had warned him that computer shipments would be used to outfit Libyan arms factories is irrelevant to any crime charged in the indictment. For its part, the government points to the appellant’s admission that he knew all along that the U.S. embargo at least paralleled United Nations sanctions (which explicitly prohibit the sale of equipment destined for Libyan military applications), and that, in light of this admis sion, Lane’s testimony tended to undercut the appellant’s claim that he did not realize the Afromed transaction transgressed U.S. law. The district court accepted the government’s position, but told the jury that it could consider the proffered testimony only with regard to McKeeve’s state of mind (i.e., whether he plotted to contravene the Libyan embargo in knowing violation of IEEPA) and not for the truth of the matter asserted. We review this decision for abuse of discretion. See Houlihan, 92 F.3d at 1297. We detect no abuse either in the trial court’s decision to admit Lane’s testimony as probative" }, { "docid": "1392213", "title": "", "text": "not warrant discussion. The short of it is that, in collogu-ing to sell computer equipment to Libya, McKeeve spun a tangled international web that ultimately ensnared its creator. For that conduct, he was lawfully indicted, fairly tried, justly convicted, and appropriately sentenced. Affirmed. . The appellant asserts that the government did not make a bona fide effort to facilitate his attendance at Redpath’s deposition. The record, which includes the correspondence between the two governments, refutes this assertion. . The appellant offers no convincing examples of any inexactitude. His only supporting datum is an unamplified statement by counsel for MIL, as follows: “There is one particular phrase that has — that is a crucial question that I remember going in as a different question.” The specific question and answer never have been identified. . To support the conviction, the government only needed to prove that the appellant conspired with one other person. See United States v. Josleyn, 99 F.3d 1182, 1190 (1st Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 959, 136 L.Ed.2d 845 (1997). The government never alleged that MIL was a coconspirator; so our choice is limited to McNeil or Sullivan." }, { "docid": "1392212", "title": "", "text": "credibility determinations have been made, plausibly supports an innocent interpretation. See United States v. Clark, 84 F.3d 506, 510 (1st Cir.), cert. denied, — U.S. -, 117 S.Ct. 272, 136 L.Ed.2d 195 (1996). Here, the overwhelming weight of the credible evidence contradicted the appellant’s professions of ignorance. Numerous witnesses testified to incriminating statements and conduct that occurred before the appellant claims he became aware of possible legal problems. This evidence strongly supports a finding that the appellant knew all along that his actions were illegal. In these circumstances, the obsolete language is inapposite and the district court’s finding of perjury is unimpugnable. .The supportability of this finding likewise defeats the appellant’s related claim that the two-level enhancement punished him for exercising his constitutional right to testify in his own defense. That right, though precious, does not include a right to commit perjury. See Dunnigan, 507 U.S. at 96, 113 S.Ct. at 1117-18. VI. CONCLUSION We need go no further. To the extent that the appellant rolls out other arguments, they are plainly inadequate and do not warrant discussion. The short of it is that, in collogu-ing to sell computer equipment to Libya, McKeeve spun a tangled international web that ultimately ensnared its creator. For that conduct, he was lawfully indicted, fairly tried, justly convicted, and appropriately sentenced. Affirmed. . The appellant asserts that the government did not make a bona fide effort to facilitate his attendance at Redpath’s deposition. The record, which includes the correspondence between the two governments, refutes this assertion. . The appellant offers no convincing examples of any inexactitude. His only supporting datum is an unamplified statement by counsel for MIL, as follows: “There is one particular phrase that has — that is a crucial question that I remember going in as a different question.” The specific question and answer never have been identified. . To support the conviction, the government only needed to prove that the appellant conspired with one other person. See United States v. Josleyn, 99 F.3d 1182, 1190 (1st Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 959, 136 L.Ed.2d 845 (1997). The" }, { "docid": "1392175", "title": "", "text": "SELYA, Circuit Judge. Defendant-appellant David S. McKeeve assembles a litany of alleged errors in protest of his conviction and sentence. His flagship claim requires us to investigate the circumstances under which the Confrontation Clause allows a prosecution witness to testify by foreign deposition over the defendant’s objection. After carefully considering this issue (a matter of first impression in. this circuit) and assaying the appellant’s other points, we affirm. I. BACKGROUND Mindful of the appellant’s challenge to the sufficiency of the evidence, we limn the facts in the light’ most flattering to the jury’s verdict. See United States v. Staula, 80 F.3d 596, 599 (1st Cir.), cert. denied, — U.S. —, 117 S.Ct. 156, 136 L.Ed.2d 101 (1996). The appellant and his business partner, Shelagh McNeil, both citizens of the United Kingdom, operated McNeil International, Ltd. (MIL), a company organized under the laws of Scotland., Through it, the pair bron kered various export transactions. In 1994, Peter Sullivan, the owner of Afromed (a Maltese firm), approached the appellant about acquiring a large quantity of computer equipment for the Libyan government. McKeeve agreed to handle the transaction and began to investigate its logistical aspects. McKeeve contacted the United Kingdom’s Department of Trade and Industry (DTI) to ascertain whether British authorities would require him to obtain an export license to ship computer equipment from the United Kingdom to Libya. DTI advised him that he probably needed such a license, and at some point, a DTI official also informed him that most computer equipment shipped to Libya wound up in munitions factories. Hot on the heels of this contact, Eric Lane, an investigator for British Customs, paid the appellant a visit. Lane stated that U.S. restrictions on trade with Libya were more stringent than those of the United Kingdom, and advised McKeeve that he- should confer with U.S. Customs if he contemplated exporting computer equipment from the United States. During the fall of 1995 the appellant designated a Massachusetts firm, New England Computer Exchange (NEXL), as the vendor of choice to supply the $300,000 worth of computer equipment \"needed to fill Afromed’s order. When" }, { "docid": "1392181", "title": "", "text": "mask his customer’s identity. The jury weighed the evidence, concluded that the appellant knew all along that U.S. law prohibited the. transaction, and convicted him on all counts. The jury also found MIL guilty as charged. The district court sentenced both defendants, but only McKeeve perfected an appeal. II. THE FOREIGN DEPOSITION The appellant objects in this court, as he did below, to admission at trial of the deposition testimony of the British shipping agent, Alex Redpath. His cardinal contention is that the admission of this evidence abrogated his rights under the Confrontation Clause. We exercise plenary review over this claim of constitutional error. See United States v. Stokes, 124 F.3d 39, 42 (1st Cir.1997). A. Setting the Stage. The parties — who agree on little else— share the view that Redpath was a key witness. Initially, the prosecution gained Red-path’s assurances that he would travel to the United States and testify at the trial. As the day of reckoning approached, Redpath experienced a change of heart. Because the district court lacked subpoena power over Red-path (who lived and forked in Great Britain), the government moved for leave to depose him abroad. The motion invoked a procedural rule that provides in pertinent part: Whenever due to exceptional circumstances of the case it is in. the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition.... Fed.R.Crim.P. 15(a). The government proposed to mitigate any ■Confrontation Clause issues by transporting the appellant and his counsel to the site of the deposition and videotaping the proceedings. . This proposal proved problematic for two reasons. First, the U.S. Marshals Service lacks jurisdiction to retain custody of federal detainees on foreign soil and the Central Authority of the United Kingdom would not agree to assume temporary custody of McKeeve so that he could attend the deposition. Second, British magistrates typically prohibit the videotaping and audiotaping of depositions, and made no exception" }, { "docid": "21570029", "title": "", "text": "Fed.Reg. 875 (Jan. 7, 1986). As a State Sponsor of Terrorism, Syria was also subject to export restrictions under EAR. See, e.g., 15 C.F.R. § 742.9 (2000). The President, exercising the power vested in him by Congress, determined that it was a threat to national security to allow the unlicensed and unauthorized sale of certain goods, including computers, to anyone in those countries. Every court to consider the issue has held that the evasion of sanctions against state sponsors of terrorism are “national security controls.” See, e.g., United States v. McKeeve, 131 F.3d 1, 14 (1st Cir.1997) (holding that export of computer equipment to Libya was evasion of national security controls); United States v. Shetterly, 971 F.2d 67, 76 (7th Cir.1992) (holding that export of microwave amplifier to West Germany was evasion of national security controls). Ghassan suggests that the issue should be decided based on the nature of the goods shipped, not on the nature of the embargoes. The First Circuit, when considering the exact same argument, held: [SJection 2M5.1(a)(l) applies to any offense that involves a shipment (or proposed shipment) that offends the embargo, whether or not the goods shipped actually are intended for some innocent use. The appellant’s argument to the contrary seeks to substitute the judgment of a factfinder for that of the executive branch, which has made a determination that the export of any goods to Libya, excepting only certain humanitarian aid, threatens national security interests. McKeeve, 131 F.3d at 14 (internal citations omitted). We agree with the First Circuit’s analysis and hold that export regulations targeted against state sponsors of terrorism are “national security controls” under 2M5.1(a). Having found no ambiguity in § 2M5.1(a), the rule of lenity has no application to this case. Accordingly, the district court did not err in holding that their export violations evaded “national security controls” under U.S.S.G. § 2M5.1(a). C. Determining Loss Under the Guidelines Basman and Ghassan contend that the district court erred in imposing a six-level enhancement for loss in calculating the advisory Guidelines range for the false-statement offenses. The Guidelines provide for increases in the" }, { "docid": "1392195", "title": "", "text": "conspire with himself, the appellant’s thesis runs, and to suggest that McNeil and Sullivan were coconspirators in this matter implies that IEEPA’s reach extends extraterritoriaily — a result inconsonant with both the statutory text and the traditional presumption against extraterritoriality. See United States v. Nippon Paper Indus. Co., 109 F.3d 1, 3 (1st Cir.), cert. denied, — U.S. -, 118 S.Ct. 685, — L.Ed.2d -(1998). Based on this reasoning, the appellant concludes that any agreement among McNeil, Sullivan, and himself concerning the exportation of computers to Libya cannot form the basis for a conspiracy conviction. This theory is both procedurally and substantively infirm. As a matter of procedure, the theory makes its debut in McKeeve’s appellate brief, and “[i]f any principle is settled in this circuit, it is that, absent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal.” Teamsters, Chauffeurs, Warehousemen & Helpers Union v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.1992). There are no excusatory circumstances here. Despite this procedural default, we could still, as a matter of discretion, review the argument for plain error. See United States v. Taylor, 54 F.3d 967, 972 (1st Cir.1995). But so detailed a review is unnecessary here, for there is no error, plain or otherwise. The appellant’s theory overlooks a critical component of IEEPA’s framework. Among other things, IEEPA expressly confers on the President the power to prohibit commercial transactions with certain foreign nations “with respect to any property ... subject to the jurisdiction of the United States.” 50 U.S.C. § 1702(a)(1). The computer equipment around which the conspiracy centered was stored in Massachusetts and unquestionably subject to the jurisdiction of the United States. Accordingly, as long as either McNeil or Sullivan knew the locus of the equipment and knew that U.S. law prohibited its export to Libya, the ensuing agreement with the appellant had an unlawful design sufficient to animate the federal conspiracy statute. In the case at hand, the government adduced ample proof of both propositions. The record contains • abundant evidence that McNeil," }, { "docid": "1392200", "title": "", "text": "context. The second prong of the appellant’s objection suggests that the government did not adduce sufficient evidence of Sullivan’s involvement to bring his statements within the reach of Rule 801(d)(2)(E). This prong rests on an impeccable legal foundation. An out-of-court statement of a non-testifying co-conspirator is admissible under Rule 801(d)(2)(E) only if the district court support-ably finds that “it is more likely than not that the declarant and the defendant were members of the conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy.” United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir.1977); accord United States v. Ortiz, 966 F.2d 707, 715 (1st Cir.1992). Factually, however, the objection falls flat. The government showed that Sullivan headed Afromed; that his name appeared on numerous documents created pursuant to the transaction; that he was in constant contact with the appellant regarding the status of the project (including the customs hold); and that he was responsible for arranging transshipment of the goods to the Libyan purchaser. The record also shows that, while in the United States, the appellant sent Sullivan a memo that advised Sullivan to use extreme caution in contacting him and to be very careful what, he said in any such communication. In light of this evidentiary predicate, the district court had a reasonable basis for concluding that, more likely than not, McKeeve and Sullivan were coconspirators and that Sullivan’s comments to Redpath were made during and in furtherance of the conspiracy. Consequently, the decision to admit Sullivan’s hearsay statements under the coconspirator exception did not constitute an abuse of discretion. B. Admission of Lane’s Testimony. During trial, Eric Lane, a British customs official, testified that the appellant spoke to him anent DTI’s earlier warning that virtually all computers sent to Libya ended up in arms factories. The appellant objected to this testimony on relevancy grounds and added that, to the extent the testimony might otherwise be admissible, it was unduly prejudicial. He argued then, and reasserts now, that since U.S. law bans the export of any product (except certain humanitarian aid) to" }, { "docid": "23344449", "title": "", "text": "SELYA, Circuit Judge. Defendant-appellant Stephen A. Holmquist appeals his convictions on six counts of importing firearms by means of false statements in violation of 18 U.S.C. § 542 and three counts of exporting restricted firearms in violation of 22 U.S.C. § 2778. Holmquist’s case has a certain labyrinthine quality. Having successfully negotiated the maze, however, we find appellant’s claims to be without legal merit and, therefore, affirm the judgment below. I. BACKGROUND Appellant, a resident of Massachusetts, owned and operated ARMCO, a firm engaged in the retail sale of firearms. Apparently not content with the domestic market, and believing his entrepreneurial skills to be of sufficient caliber, appellant set his sights on the international scene. Between 1989 and 1991, he conducted several business transactions with individuals in the People’s Republic of China. Since these transactions triggered the indictment in this ease, we offer an overview of them. Where appropriate, we resolve evidentiary conflicts, and indulge reasonable inferences, in a manner compatible with the jury verdict. See, e.g., United States v. Maraj, 947 F.2d 520, 522-23 (1st Cir.1991). In May of 1989, the U.S. State Department granted appellant’s request for a license to export handguns to the People’s Republic of China. However, following the tragic events that rocked Tiananmen Square in June of that year, the State Department declared that most firearms no longer could be exported to China. At the same time, the Department revoked or suspended all existing export licenses (including appellant’s) and declared a moratorium on the issuance of new licenses. When appellant thereafter sought just such a license, the State Department sent back his application, unapproved and stamped “returned without action.” Appellant did not reapply. Despite the lack of a license or other formal authorization, appellant thrice smuggled restricted firearms to China between October 1989 and July 1990. He carried the weaponry on commercial flights out of Boston, nestled in his suitcases amidst other, more orthodox travel items. After arriving in China, appellant delivered the guns to either Mr. Ha, a high-ranking government official, or Andrew Wong, a business executive. Based on the evidence anent these transactions," }, { "docid": "1392199", "title": "", "text": "linked the appellant to Sullivan; showed that Sullivan acted throughout with a view toward transr shipping the computer equipment through Cyprus to Libya; and undermined the appellant’s testimony that his attempt to off-load the equipment in Antwerp was not a ruse, but, rather, a sincere effort to abort the. transaction once he became aware that it would violate U.S. law. We customarily review decisions to admit or exclude evidence for abuse of discretion, see United States v. Houlihan, 92 F.3d 1271, 1296 (1st Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 963, 136 L.Ed.2d 849 (1997), and we follow that praxis here. The trial court admitted the challenged evidence on the authority of Fed.R.Evid. 801(d)(2)(E), which creates an exception to the hearsay rule for extrajudicial statements “by a coconspirator of a party during the course and in furthérance of the conspiracy.” The appellant’s principal objection to the court’s action stems from his extraterritoriality argument. We previously rejected that argument, see supra Part III, and the theory that undergirds it fares no better in an evi-dentiary context. The second prong of the appellant’s objection suggests that the government did not adduce sufficient evidence of Sullivan’s involvement to bring his statements within the reach of Rule 801(d)(2)(E). This prong rests on an impeccable legal foundation. An out-of-court statement of a non-testifying co-conspirator is admissible under Rule 801(d)(2)(E) only if the district court support-ably finds that “it is more likely than not that the declarant and the defendant were members of the conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy.” United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir.1977); accord United States v. Ortiz, 966 F.2d 707, 715 (1st Cir.1992). Factually, however, the objection falls flat. The government showed that Sullivan headed Afromed; that his name appeared on numerous documents created pursuant to the transaction; that he was in constant contact with the appellant regarding the status of the project (including the customs hold); and that he was responsible for arranging transshipment of the goods to the Libyan purchaser. The record also shows" }, { "docid": "1392180", "title": "", "text": "50 U.S.C. § 1701 note; 31 C.F.R. § 550.202 (1997); 15 C.F.R. §§ 774.1, 785.7(a), 787.3(a), 787.6 (1997); conspired to violate IEEPA,'18 U.S.C. § 371 (1994); and made false statements to the U.S. Customs Service, 18 U.S.C. § 1001 (1994). The grand jury also indicted McKeeve’s and McNeil’s corporation, MIL, on several related counts, but did not charge it with participating in the conspiracy. The bill named McNeil as an unindicted cocon-spirator, but neither she nor Sullivan was named as a defendant (presumably because they were beyond the court’s jurisdiction). At trial, the appellant admitted that Libya always had been the intended destination for the computer equipment. Nevertheless, he professed that he only belatedly became aware that his actions might violate U.S. law and that, when he learned of the problem, he tried to “slow down” the transaction by discharging the equipment in Antwerp for eventual sale in the United Kingdom. He attempted to explain away his false claim that Ethiopia was the country of ultimate destination as a standard broker’s business practice designed to mask his customer’s identity. The jury weighed the evidence, concluded that the appellant knew all along that U.S. law prohibited the. transaction, and convicted him on all counts. The jury also found MIL guilty as charged. The district court sentenced both defendants, but only McKeeve perfected an appeal. II. THE FOREIGN DEPOSITION The appellant objects in this court, as he did below, to admission at trial of the deposition testimony of the British shipping agent, Alex Redpath. His cardinal contention is that the admission of this evidence abrogated his rights under the Confrontation Clause. We exercise plenary review over this claim of constitutional error. See United States v. Stokes, 124 F.3d 39, 42 (1st Cir.1997). A. Setting the Stage. The parties — who agree on little else— share the view that Redpath was a key witness. Initially, the prosecution gained Red-path’s assurances that he would travel to the United States and testify at the trial. As the day of reckoning approached, Redpath experienced a change of heart. Because the district court lacked subpoena power over" }, { "docid": "1392202", "title": "", "text": "any Libyan entity, the fact that a DTI official had warned him that computer shipments would be used to outfit Libyan arms factories is irrelevant to any crime charged in the indictment. For its part, the government points to the appellant’s admission that he knew all along that the U.S. embargo at least paralleled United Nations sanctions (which explicitly prohibit the sale of equipment destined for Libyan military applications), and that, in light of this admis sion, Lane’s testimony tended to undercut the appellant’s claim that he did not realize the Afromed transaction transgressed U.S. law. The district court accepted the government’s position, but told the jury that it could consider the proffered testimony only with regard to McKeeve’s state of mind (i.e., whether he plotted to contravene the Libyan embargo in knowing violation of IEEPA) and not for the truth of the matter asserted. We review this decision for abuse of discretion. See Houlihan, 92 F.3d at 1297. We detect no abuse either in the trial court’s decision to admit Lane’s testimony as probative of McKeeve’s state of mind or in its refusal to exclude the proffer under Fed.R.Evid. 403. The relevancy objection requires scant comment. Fed.R.Evid. 401 deems relevant evidence that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The instant indictment charged the appellant with knowingly and willfully violating, and conspiring to violate, IEEPA. His state of mind, assessable only by indirect proof, see United States v. St. Michael’s Credit Union, 880 F.2d 579, 600 (1st Cir.1989), was of critical importance to the resolution of these charges. When, as now, the prosecution offers evidence bearing on an inherently subjective inquiry, the relevancy threshold is at its lowest. See United States v. Tierney, 760 F.2d 382, 387 (1st Cir.1985). Seen in this light, Judge Keeton reasonably could conclude — as, indeed, he did — that McKeeve’s knowledge of the likely end use of the computer equipment tended to make less probable his state-of-mind defense." }, { "docid": "1392182", "title": "", "text": "Red-path (who lived and forked in Great Britain), the government moved for leave to depose him abroad. The motion invoked a procedural rule that provides in pertinent part: Whenever due to exceptional circumstances of the case it is in. the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition.... Fed.R.Crim.P. 15(a). The government proposed to mitigate any ■Confrontation Clause issues by transporting the appellant and his counsel to the site of the deposition and videotaping the proceedings. . This proposal proved problematic for two reasons. First, the U.S. Marshals Service lacks jurisdiction to retain custody of federal detainees on foreign soil and the Central Authority of the United Kingdom would not agree to assume temporary custody of McKeeve so that he could attend the deposition. Second, British magistrates typically prohibit the videotaping and audiotaping of depositions, and made no exception in this instance. The district court nonetheless found that Redpath was an unavailable witness and that the interest of justice warranted the deposition. Working within the spare confines of the British scheme, the court directed the government to transport the appellant’s attorney to the deposition and to install two telephone lines — one that would allow the appellant to monitor the deposition from his prison cell and another that would allow him to consult privately with counsel during the deposition. The court reserved a ruling on the Confrontation Clause objections until the time of trial. Redpath’s deposition was taken before a British magistrate in the Solihull Magistrates’ Court, Birmingham, England. Lawyers for the government and for both defendants attended and questioned the deponent. A solicitor (who doubled in brass as the clerk of the Magistrates’ Court) contemporaneously prepared a transcript. The appellant monitored the proceedings by'means of a live telephone link. At the conclusion of the session, the solicitor certified the transcript as accurate and forwarded .it to the district court. When the prosecution subsequently" }, { "docid": "1392197", "title": "", "text": "at least, was aware óf U.S. export restrictions and purposefully sought to evade them. Of particular note are her successful efforts to coerce Rucker into signing an SED that falsely described the ultimate destination of the goods and her countermanding of the suggestion that the goods be discharged in Antwerp. In addition, the nisi prius roll shows beyond hope of contradiction that the appellant performed an overt act in furtherance of the conspiracy when he purchased the equipment from NEXL in Massachusetts and attempted to ship it to Libya. McKeeve’s purchase supplied the final piece of proof needed to ground a conviction on the conspiracy count. See Ford v. United States, 273 U.S. 593, 620, 47 S.Ct. 531, 540, 71 L.Ed. 793 (1927) (holding that, when a conspiracy “was directed to violation of the United States law within the United States by men within and without it, and everything done was at the procuration and by the agency of each for the other in pursuance of the conspiracy ■... all are guilty of the offense of conspiring to violate the United States law whether they are in or out 'of the country”); United States v. Inco Bank & Trust Corp., 845 F.2d 919, 920 n. 4 (11th Cir.1988) (per curiam) (noting “that a conspiracy occurring partly within the United States is prosecutable without resort to any theory of extraterritorial jurisdiction”); Rivera v. United States, 57 F.2d 816, 819 (1st Cir.1932) (“The place of the conspiracy is immaterial provided an overt act is committed .within the jurisdiction of the court.”). No more is exigible. IV. OTHER ALLEGED TRIAL ERRORS The appellant raises a host of issues that relate loosely to his off-repeated claim'that he did not receive a fair trial. Individually, these issues are insubstantial, and in combination they produce no synergistic effect. A. Admission of Sullivan’s Statement. In a protest that harks back to his sufficiency challenge, the appellant takes umbrage with the district court’s decision to admit, over his objection, evidence of certain out-of-court statements allegedly made by Sullivan to third parties. The statements, as recounted by Redpath, specifically" }, { "docid": "1392179", "title": "", "text": "and McNeil instructed him to delete Greece and insert Ethiopia as the country of ultimate destination. Rucker made the requested changes, signed the SED, and transmitted a facsimile to McNeil. Notwithstanding the newly executed SED, the customs hold endured. On October 31, the U.S. Customs Service became convinced that the appellant sought surreptitiously to export goods to Libya. A customs agent, posing as a seaport supervisor, convinced the appellant to return to Boston and address a paperwork snafu that ostensibly prevented vacation of the customs hold. During a meeting with undercover customs agents, captured on videotape, the appellant vouchsafed that the computer equipment was destined for Ethiopia and signed a false SED. Shortly thereafter, the authorities arrested him and seized the computer equipment. A federal grand jury indicted the appellant on charges that he knowingly violated the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701-1706 (1994), and its associated Executive Orders and regulations, Exec: Order No. 12,924, 3 C.F.R. 917 (1994) & Exec. Order No. 12,543, 3 C.F.R. 181 (1986), both reprinted in 50 U.S.C. § 1701 note; 31 C.F.R. § 550.202 (1997); 15 C.F.R. §§ 774.1, 785.7(a), 787.3(a), 787.6 (1997); conspired to violate IEEPA,'18 U.S.C. § 371 (1994); and made false statements to the U.S. Customs Service, 18 U.S.C. § 1001 (1994). The grand jury also indicted McKeeve’s and McNeil’s corporation, MIL, on several related counts, but did not charge it with participating in the conspiracy. The bill named McNeil as an unindicted cocon-spirator, but neither she nor Sullivan was named as a defendant (presumably because they were beyond the court’s jurisdiction). At trial, the appellant admitted that Libya always had been the intended destination for the computer equipment. Nevertheless, he professed that he only belatedly became aware that his actions might violate U.S. law and that, when he learned of the problem, he tried to “slow down” the transaction by discharging the equipment in Antwerp for eventual sale in the United Kingdom. He attempted to explain away his false claim that Ethiopia was the country of ultimate destination as a standard broker’s business practice designed to" }, { "docid": "1392176", "title": "", "text": "for the Libyan government. McKeeve agreed to handle the transaction and began to investigate its logistical aspects. McKeeve contacted the United Kingdom’s Department of Trade and Industry (DTI) to ascertain whether British authorities would require him to obtain an export license to ship computer equipment from the United Kingdom to Libya. DTI advised him that he probably needed such a license, and at some point, a DTI official also informed him that most computer equipment shipped to Libya wound up in munitions factories. Hot on the heels of this contact, Eric Lane, an investigator for British Customs, paid the appellant a visit. Lane stated that U.S. restrictions on trade with Libya were more stringent than those of the United Kingdom, and advised McKeeve that he- should confer with U.S. Customs if he contemplated exporting computer equipment from the United States. During the fall of 1995 the appellant designated a Massachusetts firm, New England Computer Exchange (NEXL), as the vendor of choice to supply the $300,000 worth of computer equipment \"needed to fill Afromed’s order. When NEXL’s representatives (Cliff Rucker and Deepak Jain) learned that the appellant wanted to transship the equipment through Cyprus — a notorious clearinghouse for goods destined for embargoed countries — they expressed concern about the ultimate resting place of the computer equipment. The appellant prevaricated and told them that the goods were bound for Ethiopia. McKeeve and McNeil proceeded to instruct their stateside shipping agent, Peabody and .Lane (P & L), to arrange shipment only as far as Cyprus. Simultaneously, they directed a British shipping agent, Alex Red-path, to arrange freight forwarding to Libya and, when Redpath warned that the U.S. trading embargo posed potential difficulties, the appellant merely reiterated the instruction. On October 12,1995, the appellant oversaw the packing of the computer equipment at NEXL’s warehouse in Reading, Massachusetts. A trucker delivered the goods, in a shipping container, to port in Charlestown, Massachusetts. Acting on a tip, the U.S. Customs Service ordered the container held at port. Because this delay threatened to undercut the letter of credit that Afromed had produced to pay for the" }, { "docid": "1392177", "title": "", "text": "NEXL’s representatives (Cliff Rucker and Deepak Jain) learned that the appellant wanted to transship the equipment through Cyprus — a notorious clearinghouse for goods destined for embargoed countries — they expressed concern about the ultimate resting place of the computer equipment. The appellant prevaricated and told them that the goods were bound for Ethiopia. McKeeve and McNeil proceeded to instruct their stateside shipping agent, Peabody and .Lane (P & L), to arrange shipment only as far as Cyprus. Simultaneously, they directed a British shipping agent, Alex Red-path, to arrange freight forwarding to Libya and, when Redpath warned that the U.S. trading embargo posed potential difficulties, the appellant merely reiterated the instruction. On October 12,1995, the appellant oversaw the packing of the computer equipment at NEXL’s warehouse in Reading, Massachusetts. A trucker delivered the goods, in a shipping container, to port in Charlestown, Massachusetts. Acting on a tip, the U.S. Customs Service ordered the container held at port. Because this delay threatened to undercut the letter of credit that Afromed had produced to pay for the goods, the appellant flew to Malta and met with Sullivan. At about the same time, the appellant instructed P & L to discharge the computer equipment in Antwerp, Belgium (a port through which it already was scheduled to. pass en route to Cyprus). When a P & L agent informed McNeil about this change, McNeil advised her to maintain Cyprus as the port of final destination. The appellant subsequently confirmed McNeil’s instruction. Despite these machinations, the computer equipment stayed put. Although it originally was due to depart Charlestown on October 18, it remained on customs hold a full week later. On October 25, McNeil contacted NEXL’s chief executive and stated that if he (Rucker) did not sign the Shipper’s Export Declaration (SED), a U.S. Customs export document that lists, among other things, the ultimate destination of the goods, no payment would be forthcoming. McNeil transmitted an unsigned SED to Rucker that listed “Cyprus, Greece” as the port of unloading and Greece as the country of ultimate destination. Rucker called McNeil to report the apparent discrepancy" }, { "docid": "1392194", "title": "", "text": "barrage of nearly unthirlable arguments directed toward his conviction for conspiracy to violate IEEPA. These arguments land well wide of the mark. IEEPA codifies Congress’s intent to confer broad and flexible power upon the President to impose and enforce economic sanctions against nations that the President deems a threat to national security interests. See United States v. Arch Trading Co., 987 F.2d 1087, 1093-94 (4th Cir.1993). Included in the President’s IEEPA authority is the right to prohibit persons from engaging in commercial transactions with such.hostile foreign nations. See 50 U.S.C. § 1702(a)(1)(B). The appellant reads this provision as applying only to persons who are subject to the jurisdiction of the United States. He then posits that as neither of his supposed accomplices fell within the territorial jurisdiction of the United States when the events at issue transpired — McNeil and Sullivan are domiciliaries of the United Kingdom and Malta, respectively, and neither of them entered the United States during the rele vant time frame — they could not in terms violate IEEPA. A person cannot conspire with himself, the appellant’s thesis runs, and to suggest that McNeil and Sullivan were coconspirators in this matter implies that IEEPA’s reach extends extraterritoriaily — a result inconsonant with both the statutory text and the traditional presumption against extraterritoriality. See United States v. Nippon Paper Indus. Co., 109 F.3d 1, 3 (1st Cir.), cert. denied, — U.S. -, 118 S.Ct. 685, — L.Ed.2d -(1998). Based on this reasoning, the appellant concludes that any agreement among McNeil, Sullivan, and himself concerning the exportation of computers to Libya cannot form the basis for a conspiracy conviction. This theory is both procedurally and substantively infirm. As a matter of procedure, the theory makes its debut in McKeeve’s appellate brief, and “[i]f any principle is settled in this circuit, it is that, absent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal.” Teamsters, Chauffeurs, Warehousemen & Helpers Union v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.1992). There are no excusatory circumstances here. Despite" } ]

[ { "docid": "12091707", "title": "", "text": "7. We conclude, therefore, that Mr. Smith received adequate procedure to satisfy the constitutional requirements of notice and an opportunity to be heard. Mr. Smith’s other two constitutional arguments border on the frivolous and will be discussed only briefly. Mr. Smith asserts that the actions by the Town Board of Eaton violated his substantive due process rights. The board’s actions of suspending and ultimately dismissing Mr. Smith are based on several problems related to Mr. Smith’s work, including an altercation with another officer, failure to follow procedure, and a written complaint by a citizen regarding Mr. Smith’s performance of his duties. R. 18 Ex. 4; R. 20 Exs. A & D; R. 21 at 4. In the face of these incidents, Mr. Smith presents no argument nor alleges any facts that would support a finding that the board’s action was arbitrary or capricious. We conclude, therefore, that Mr. Smith’s substantive due process claim has no merit. Mr. Smith’s equal protection argument similarly is meritless. He claims that the town board had information regarding complaints against two other officers and did not suspend or dismiss them. Appellant’s Br. at 15. An equal protection claim must be based on “intentional discrimination against [the plaintiff] because of his membership in a particular class, not merely [because] he was treated unfairly as an individual.” Huebschen v. Department of Health and Social Servs., 716 F.2d 1167, 1171 (7th Cir.1983); see also Gray v. Locke, 885 F.2d 399, 414 (7th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1476, 108 L.Ed.2d 613 (1990). Mr. Smith does not allege such class-based discrimination, and therefore this claim also fails. IV Having disposed of the substantive issues before us, we now turn to the matter of sanctions. We must conclude that appellant’s counsel’s performance in this appeal has been substandard. We have been impeded in our review of the case and valuable time has been lost. We first admonish counsel that such performance is not to be repeated. Any such repetition may well result in suspension from practice before this court. Second, we fine counsel five hundred dollars ($500), payable" } ]

[ { "docid": "10048317", "title": "", "text": "than intent as volition or intent as awareness of consequences.” Personnel Administrator of Massachusetts v. Feeny, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979). It implies that the decisionmaker singled out a particu lar group for disparate treatment and selected his course of action at least in part for the purpose of causing its adverse effects on an identifiable group. Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir.1982). Plaintiffs presented no evidence that defendants selected a policy of limiting gang activity and permitting gang membership because o/the effect it would have on the allegedly suspect class, in this case the white inmates who were forced into protective custody. Therefore, even though certain IDOC regulations and policies, though facially neutral, may effect certain groups unevenly, such an uneven effect will not give rise to constitutional concern unless the policy is an obvious pretext for discrimination against the suspect class. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). ... [A]s was made clear in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450, even if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose. Personnel Adm’r. of Massachusetts v. Feeny, 442 U.S. at 273, 99 S.Ct. at 2293 (emphasis added). Nevertheless, a disparate “impact itself would signal that the real classification made by the law [is] ... not neutral” if no neutral explanation for the disparate impact can be offered. Personnel Adm’r. of Massachusetts v. Feeny, 442 U.S. at 275, 99 S.Ct. at 2294. Here, much like in Feeny, the prison administration offered a neutral explanation for the disparate impact its policy had on white inmates. Like the state statute in Feeny, which drew distinctions between veterans and non-veterans but had a disparate impact on women because so few women were veterans, the administration’s gang-related policies, which draw" }, { "docid": "7934957", "title": "", "text": "process injuries and other constitutional injuries. The Fourteenth Amendment prohibits the states from depriving “any person of life, liberty, or property, without due process of law.” A procedural due process claim necessitates “a property deprivation of constitutional magnitude” and, of course, one effected without due process. Easter House, 910 F.2d at 1407. In comparison with other constitutional claims such as equal protection or free exercise, a cognizable procedural due process claim does not typically arise until the proceedings are at a mature stage and due process has not been furnished, even though a tangible deprivation has occurred. By contrast, simply because they are not “procedural due process” injuries, other constitutional harms may arise no matter how much process is afforded. For example, an equal protection cause of action accrues whenever a state “den[ies] to any person within its jurisdiction the equal protection of the laws.” U.S. Const.Amend. XIV, § 1. To state an equal protection claim, a § 1983 plaintiff must allege that a state actor purposefully discriminated against him because of his identification with a particular (presumably historically disadvantaged) group. See Shango v. Jurich, 681 F.2d 1091, 1103-04 (7th Cir.1982); Washington v. Davis, 426 U.S. 229, 247-48, 96 S.Ct. 2040, 2051, 48 L.Ed.2d 597 (1976). As this court observed recently in Triad Associates, Inc. v. Robinson, “governmental disregard of the fundamental dictate of equal treatment is the beginning and end of the equal protection inquiry.” 10 F.3d 492, 500 (7th Cir.1993). Sherwin presents a cognizable equal protection claim since it alleges that it was subjected to differential treatment by the state surveyors based upon the surveyors’ anti-Semitic animus. The district court incorrectly extended the due process injury requirement of Easter Home to all § 1988 cases. The defendants’ anti-Semitic remarks may not by themselves give rise to an equal protection action by Sherwin. See Bell v. City of Milwaukee, 746 F.2d 1205, 1259 (7th Cir.1984) (“derogatory references to racial or ethnic backgrounds by themselves obviously do not rise to the level of a constitutional violation”). However, such verbal abuse accompanied by the imposition of a special administrative burden forms" }, { "docid": "10048316", "title": "", "text": "incorrect preliminary injunction standard by requiring them to prove that all the members of the allegedly invidious class were in that class as a result of defendants’ policies and not merely by happenstance. We need not decide whether the administration’s policies actually create a “suspect class” (although clearly the percentage of white inmates in protective custody is disproportionately large in comparison to the total number of white inmates in the general population) since plaintiffs’ equal protection claim fails for another reason. Even if the administration’s policies have a disparate impact on a suspect class, plaintiffs failed to show that the administration harboured a discriminatory motive in implementing those policies. ... [T]he “Equal Protection Clause has long been limited to instances of purposeful or invidious discrimination rather than erroneous or even arbitrary administration of state powers_” Briscoe v. Kusper, 435 F.2d 1046, 1052 (7th Cir.1970). A plaintiff “must demonstrate intentional or purposeful discrimination” to show an equal protection violation. Bloomenthal v. Lavelle, 614 F.2d 1139, 1141 (7th Cir.1980) (per curiam). “ ‘Discriminatory purpose’ however, implies more than intent as volition or intent as awareness of consequences.” Personnel Administrator of Massachusetts v. Feeny, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979). It implies that the decisionmaker singled out a particu lar group for disparate treatment and selected his course of action at least in part for the purpose of causing its adverse effects on an identifiable group. Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir.1982). Plaintiffs presented no evidence that defendants selected a policy of limiting gang activity and permitting gang membership because o/the effect it would have on the allegedly suspect class, in this case the white inmates who were forced into protective custody. Therefore, even though certain IDOC regulations and policies, though facially neutral, may effect certain groups unevenly, such an uneven effect will not give rise to constitutional concern unless the policy is an obvious pretext for discrimination against the suspect class. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). ... [A]s was made clear in Washington" }, { "docid": "5018367", "title": "", "text": "e.g. race — establishes the standard of review. If no suspect class or fundamental right is implicated, then a court would look to whether the actions which result in unequal treatment are rationally related to a legitimate state purpose. Wright v. Cuyler, 517 F.Supp. 637, 643 (E.D.Pa.1981) (citing United States ex rel. Wakeley v. Pennsylvania, 247 F.Supp. 7, 14 (E.D.Pa.1965) and Durso v. Rowe, 579 F.2d 1365, 1372 (7th Cir.1978)). However, in any case, some sort oí purposeful discrimination must be involved. E & T Realty v. Strickland, 830 F.2d 1107, 1113-14 (11th Cir.1987) (citing cases) (in case not involving a suspect class, district court decision to permit plaintiff to proceed to trial vacated because of failure to require plaintiff to show intentional discrimination), cert. denied, 485 U.S. 961, 108 S.Ct. 1225, 99 L.Ed.2d 425 (1988); see also Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir.1982) (incorrect application of prison transfer regulations). Discriminatory purpose, however, implies more than intent as violation or intent as awareness of consequences. It implies that the decisionmaker singled out a particular group for disparate treatment and selected his course of action at least in part for the purpose of causing its adverse effects on the identifiable group. Shango, 681 F.2d at 1104. This requirement would therefore also apply to the individual alleging unfair treatment. As the court sees it, Adams has two glaring problems with his equal protection claim. First, he has tendered absolutely no evidence which would lead one to believe or even infer that defendants McAllister and Hoaster intended: (1) to lie; (2) in the context of a presentence report; and (3) so that Adams would be denied certain privileges while incarcerated. The most he has shown is that there is some evidence available to dispute the contentions made in the presentence report. However, even if every claim in the report was untrue, Adams could not proceed to trial with an equal protection claim without some evidence that defendants knew of the falsehoods and concocted the stories so that he would be denied privileges later. Second, the injuries complained of — denial" }, { "docid": "23061276", "title": "", "text": "fact could not reasonably infer from the ... evidence that the Village defendants acted irrationally.” New Burnham Prairie Homes, Inc. v. Village of Burnham, Mem. op. at 12 (N.D.Ill. Dec. 2, 1988). The court noted the evidence that the retention pond was necessary, that a public pond would be aesthetically superior to several private ponds, that Sylvester was denied permits because he was delinquent in paying special assessments, and that the moratorium on building affected Biederman as well as Sylvester. We agree with the district court. However, we also note a more fundamental problem with the plaintiffs’ claim. In order to assert a constitutional claim based on violation of equal protection, a complaining party must assert disparate treatment based on their membership in a particular group. Discrimination based merely on individual, rather than group, reasons will not suffice. A person bringing an action under the Equal Protection Clause must show intentional discrimination against him because of his membership in a particular class, not merely that he was treated unfairly as an individual. “[T]he deci-sionmaker [must have] selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Huebschen v. Department of Health and Social Servs., 716 F.2d 1167, 1171 (7th Cir.1983) (quoting Personnel Administrator v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979)) (emphasis added by Huebschen court); see also Gray v. Lacke, 885 F.2d 399, 414 (7th Cir.1989) (equal protection claim requires claim of discrimination because of “membership in a particular class”), cert. denied, — U.S.-, 110 S.Ct. 1476, 108 L.Ed.2d 613 (1990). Even assuming that the Village favored Biederman by approving Bieder-man’s plans more expeditiously and by requiring less extensive supporting documentation, the plaintiffs have not alleged that they have been singled out because they belong to any particular class. We con-dude, therefore, that the district court properly granted summary judgment on the equal protection claim. III TRIAL OF THE RACIAL DISCRIMINATION CHARGE A. Evidentiary Rulings The plaintiffs raise several objections to rulings made by the district court" }, { "docid": "5937288", "title": "", "text": "show “that the enforcement not only proceeded from an unjust and illegal discrimination between persons in similar circumstances but also that the discriminatory enforcement was intentionally or purposefully carried out”). “Discriminatory purpose,” in this sense, “implies more than intent as volition or intent as awareness of consequences. It implies that the decision-maker singled out a particular group for disparate treatment and selected his course of action at least in part for the purpose of causing its adverse effects on the identifiable group.” Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir.1982). In Scadron’s complaint, there is no specific allegation of discriminatory purpose. However, Scadron has requested leave, in conjunction with its briefing of the equal protection issue, to amend its complaint to include allegations that the City intentionally discriminates against small sign companies in the enforcement of its ordinances. According to Scadron, the City treats large sign companies more favorably because large companies can afford to put up numerous signs and can thus be dissuaded from litigating by a compromise which allows them to erect some, but not all, of the signs they propose. The City argues that even with the amendment, Scadron fails to state a claim under the equal protection clause. The City argues that it would not be in its interest to discriminate against small sign companies in the application of its ordinances, and indeed that, if anything, it would be in the City’s interest to favor small sign companies rather than large ones. The Court does not find this argument to be helpful. It is relevant only to whether Scadron’s allegations are true, and a motion to dismiss is not the appropriate forum to consider whether the alleged discrimination has actually occurred. The City also argues that there is no case holding that the size of a company is an invidious or irrational classification. The absence of a suspect class does not affect the existence of a cause of action; it merely affects the standard of review. Stringer v. Rowe, 616 F.2d 993, 998 (7th Cir.1980), quoting Durso v. Rowe, 579 F.2d 1365, 1372 (7th Cir.1978)," }, { "docid": "23407643", "title": "", "text": "against in any curricular, extracurricular, pupil services, recreational or other program or activity because of the person’s sex, race, religion, national origin, ancestry, creed, pregnancy, marital or parental status, sexual orientation or physical, mental, emotional or learning disability. Since at least 1988, in compliance with the state statute, the Ashland Public School District has had a policy of prohibiting discrimination against students on the basis of gender or sexual orientation. The District’s policy and practice includes protecting students from student-on-student sexual harassment and battery. Nabozny maintains that the defendants denied him the equal protection of the law by denying him the protection extended to other students, based on his gender and sexual orientation. The Equal Protection Clause grants to all Americans “the right to be free from invidious discrimination in statutory classifications and other governmental activity.” Harris v. McRae, 448 U.S. 297, 322, 100 S.Ct. 2671, 2691, 65 L.Ed.2d 784 (1980). When a state actor turns a blind eye to the Clause’s command, aggrieved parties such as Nabozny can seek relief pursuant to 42 U.S.C. § 1983. Cf. Muckway v. Craft, 789 F.2d 517, 521 (7th Cir.1986) (noting that a § 1983 claim is a tort action, requiring proof of duty, breach, causation, and damages). In order to establish liability under § 1983, Nabozny must show that the defendants acted with a nefarious discriminatory purpose, Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979), and discriminated against him based on his membership in a definable class. Albright v. Oliver, 975 F.2d 343, 348 (7th Cir.1992), aff'd, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Falls v. Town of Dyer, 875 F.2d 146, 148 (7th Cir.1989). As we explained in Shango v. Jurich, 681 F.2d 1091 (7th Cir.1982): The gravamen of equal protection lies not in the fact of deprivation of a right but in the invidious classification of persons aggrieved by the state’s action. A plaintiff must demonstrate intentional or purposeful discrimination to show an equal protection violation. Discriminatory purpose, however, implies more than intent as volition or intent" }, { "docid": "4612354", "title": "", "text": "protection clause involves a suspect classification or a fundamental right, the regulation must be upheld if the classification is rationally related to a legitimate governmental interest. Vaden v. Village of Maywood, 809 F.2d 361, 365 (7th Cir.1987) (citing City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976)). The parties in this case concede that the appropriate standard of review is the rational relation test. Therefore, in reviewing this ordinance, we must keep in mind that “[s]tates [and cities] are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude.” Vaden, at 365 (citing Dukes, 427 U.S. at 303, 96 S.Ct. at 2517). A local ordinance aimed at remedying a problem need not entirely eliminate the problem. Instead, it may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. Id. 1. Midway vs. O’Hare Arrest & Detention Policy City Defendants contend that we must dismiss plaintiffs’ equal protection challenge to the City’s disparate enforcement of the ordinance at Midway and O’Hare Airports because the plaintiffs have not alleged that the disparate enforcement is intentional, citing Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir.1982). In Shango, the Seventh Circuit dismissed an equal protection claim holding that “isolated events that adversely affect individuals are not presumed to be a violation of the equal protection clause.” 681 F.2d at 1104. The court noted that all the Shango plaintiff had shown was a “mere inconsistency in prison management [which] may not in itself constitute a cognizable equal protection claim.” Id. We think that a fair and liberal reading of plaintiffs’ complaint shows they allege a practice of intentional disparate treatment. Those arrested at Midway are issued citations and sent on their way, while those arrested at O’Hare are detained for extensive periods of time. Plaintiffs are not alleging isolated instances of disparate treatment or mere inconsistent treatment, but rather an intentional pattern of such disparate treatment." }, { "docid": "507229", "title": "", "text": "se complaint unless it is clear that the plaintiff could not cure the deficiency by amendment, Ricketts v. Mid west Nat’l Bank, 874 F.2d 1177, 1183 (7th Cir.1989), the court concludes that the facts alleged may state a claim that has not been specifically asserted by Mr. Thomas. Acts taken against a prisoner in retaliation for the exercise of a Constitutional right can state a claim under § 1983, even when the retaliatory acts do not themselves violate a Constitutional right. Matzker v. Herr, 748 F.2d 1142, 1151 (7th Cir.l984)(citing Buise v. Hudkins, 584 F.2d 223, 229 (7th Cir.), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979)). Mr. Thomas does not claim that the defendants’ verbal threats and abuse were motivated by retaliation, and the word “retaliate” does not appear in his complaint. Nonetheless, the facts alleged would arguably state a retaliation claim. Accepting Mr. Thomas’s allegations as true, as the court must at this stage of the proceedings, the defendants threatened him and exposed him to a risk of harm because he exercised his rights under the First Amendment and to prevent him from further exercising his rights by testifying against Officer McClendon. Accordingly, the court will afford Mr. Thomas time to file a motion to amend his complaint asserting a retaliation claim. Mr. Thomas also claims that the defendants violated his right to equal protection. An equal protection claim must be based on intentional discrimination against the plaintiff because of his or her membership in a particular class. Washington v. Davis, 426 U.S. 229, 247-48, 96 S.Ct. 2040, 2051-52, 48 L.Ed.2d 597 (1976); Smith v. Town of Eaton, 910 F.2d 1469, 1472 (7th Cir.1990). Unfair treatment of the plaintiff as an individual does not violate the clause. Trautvetter v. Quick, 916 F.2d 1140, 1149 (7th Cir.1990) (citing Huebschen v. Dep’t of Health and Social Servs., 716 F.2d 1167, 1171 (7th Cir.1983)). A plaintiff asserting an equal protection claim must allege specific facts substantiating his belief that the defendant singled him out as a member of a group at least in part for the purpose" }, { "docid": "19693919", "title": "", "text": "were always free to go anywhere they wanted as long as they did not remain in the store. Under such circumstances, Sheppard dictates a finding that no “seizure” occurred. Accordingly, for all the reasons stated above, the court grants the Town Defendants’ motion for summary judgment with respect to plaintiffs’ first cause of action to the extent it rests upon the Fourth Amendment. 4. Fourteenth Amendment — Equal Protection The Fourteenth Amendment provides, in pertinent part, that “[n]o State shall ... deny any person within its jurisdiction the equal protection of the laws.” U.S. Const., amend. 14, § 1 (emphasis added). “To state an equal protection claim, a § 1983 plaintiff must allege that a state actor purposefully discriminated against him because of his identification with a particular (presumably historically disadvantaged) group.” Sherwin Manor Nursing Center, Inc. v. McAuliffe, 37 F.3d 1216, 1220 (7th Cir.1994) (citing Shango v. Jurich, 681 F.2d 1091, 1103-04 (7th Cir.1982); Washington v. Davis, 426 U.S. 229, 247-48, 96 S.Ct. 2040, 2051, 48 L.Ed.2d 597 (1976)); see also Prompt Courier Serv., Inc v. Koch, No. 89 Civ. 3053, 1990 WL 100904, at *4, 1990 U.S.Dist. LEXIS 8628, at *26 (S.D.N.Y. July 12, 1990). It is not necessary, however, that a plaintiff prove that the challenged action rested solely upon racially discriminatory purposes; only that the discriminatory purpose was a motivating factor in the decision. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 563-64, 50 L.Ed.2d 450, 464-66 (1977). A plaintiff may satisfy this evidentiary burden “[e]ither by introducing facts establishing that discriminatory racial intent was the most likely motivation for the action in question, or that the defendant’s alternative explanation for [its] action is impossible.” Prompt Courier Serv., Inc., 1990 WL 100904, at *8, 1990 U.S.Dist. LEXIS 8628, at *25 (citing Gibson v. American Broadcasting Companies, Inc., 892 F.2d 1128, 1132 (2d Cir.1989) (discussing Title VII and § 1981 claims in the context of a summary judgment motion)); see also Jennings v. Lewis, No. 93-15674, 1993 WL 524130, 1993 U.S.App. LEXIS 34219 (9th Cir. Dec. 6, 1993) (discriminatory intent" }, { "docid": "4612355", "title": "", "text": "City Defendants contend that we must dismiss plaintiffs’ equal protection challenge to the City’s disparate enforcement of the ordinance at Midway and O’Hare Airports because the plaintiffs have not alleged that the disparate enforcement is intentional, citing Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir.1982). In Shango, the Seventh Circuit dismissed an equal protection claim holding that “isolated events that adversely affect individuals are not presumed to be a violation of the equal protection clause.” 681 F.2d at 1104. The court noted that all the Shango plaintiff had shown was a “mere inconsistency in prison management [which] may not in itself constitute a cognizable equal protection claim.” Id. We think that a fair and liberal reading of plaintiffs’ complaint shows they allege a practice of intentional disparate treatment. Those arrested at Midway are issued citations and sent on their way, while those arrested at O’Hare are detained for extensive periods of time. Plaintiffs are not alleging isolated instances of disparate treatment or mere inconsistent treatment, but rather an intentional pattern of such disparate treatment. Such disparate treatment in and of itself does not constitute a violation of the equal protection clause. It is only if the policy of arresting and detaining has no rational basis that an equal protection claim is stated. Cf Ciechon v. City of Chicago, 686 F.2d 511, 522 (7th Cir.1982) (finding violation of equal protection clause where two similarly situated city employees were disciplined differently in an irrational manner). It is not sufficient for plaintiff to claim a mere failure of those who administer the ordinance to treat all persons who have violated it equally. The equal protection clause prohibits selective enforcement which is deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification. D’Acquisto v. Washington, 640 F.Supp. 594, 625 (N.D.Ill.1986) (citing Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962)). “The Constitution does not require states to enforce their laws (or cities their ordinances) with Prussian thoroughness as the price of being allowed to enforce them at all.” Hameetman v. City of Chicago," }, { "docid": "507230", "title": "", "text": "because he exercised his rights under the First Amendment and to prevent him from further exercising his rights by testifying against Officer McClendon. Accordingly, the court will afford Mr. Thomas time to file a motion to amend his complaint asserting a retaliation claim. Mr. Thomas also claims that the defendants violated his right to equal protection. An equal protection claim must be based on intentional discrimination against the plaintiff because of his or her membership in a particular class. Washington v. Davis, 426 U.S. 229, 247-48, 96 S.Ct. 2040, 2051-52, 48 L.Ed.2d 597 (1976); Smith v. Town of Eaton, 910 F.2d 1469, 1472 (7th Cir.1990). Unfair treatment of the plaintiff as an individual does not violate the clause. Trautvetter v. Quick, 916 F.2d 1140, 1149 (7th Cir.1990) (citing Huebschen v. Dep’t of Health and Social Servs., 716 F.2d 1167, 1171 (7th Cir.1983)). A plaintiff asserting an equal protection claim must allege specific facts substantiating his belief that the defendant singled him out as a member of a group at least in part for the purpose of causing an adverse effect on the group. New Burnham Prairie Homes, Inc. v. Burnham, 910 F.2d 1474, 1481 (7th Cir.1990); see, e.g., Reed v. Faulkner, 842 F.2d 960 (7th Cir.1988) (allegation of deliberate discrimination based on plaintiffs religious affiliations states equal protection claim); Harris v. Greer, 750 F.2d 617 (7th Cir.1984) (allegation of deliberate racial discrimination sufficient to state equal protection claim). Mr. Thomas merely alleges that he was treated unfairly, but does not allege that the defendants acted with the motive necessary to state an equal protection claim. The defendants’ motion on this claim is, therefore, granted. As Mr. Thomas has stated an Eighth Amendment claim and may be able to state a retaliation claim, the court turns to the defendants’ contention that his claim would be barred by the PLRA. This action was commenced on April 23, 1996. The PLRA was signed into law on April 26, 1996. Section 803 of the PLRA amended the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997e, to include the following relevant provision: (e)" }, { "docid": "23429469", "title": "", "text": "1983 just because the defendants are public officers. See, e.g., Street v. Surdyka, 492 F.2d 368, 369, 371 (4th Cir. 1974); Williams v. Thomas, 692 F.2d 1032, 1035 (5th Cir.1982). Section 1983 provides a remedy only for violations of federal law. Although the complaints allege violations of both the equal protection and due process clauses of the Fourteenth Amendment, they clearly state no claim under the former. If the defendants had withheld protection from the plaintiffs’ decedents because they were blacks or members of some other vulnerable minority — if the defendants were discriminating in a vicious or irrational fashion — there would be an equal protection issue. See Smith v. Ross, 482 F.2d 33, 36-37 (6th Cir.1973) (per curiam). But only deliberate discrimination violates equal protection, Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir.1982), and is not alleged in this case. The defendants did not know that anyone, alive or dead, was in the car until they put out the fire. They certainly did not know whether there was anyone belonging to a group to which they were hostile. secured by the clause include not only the traditional negative liberties — the right to be let alone, in its various forms — but also certain positive liberties, including the right to receive the elementary protective services that the state routinely provides users of its highways. If so, and a state officer deprives a person of such a liberty and death ensues as a proximate result, damages for that death could be recovered under section 1983. The problem with this argument is that the Constitution is a charter of negative rather than positive liberties. Harris v. McRae, 448 U.S. 297, 318, 100 S.Ct. 2671, 2688, 65 L.Ed.2d 784 (1980); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them. The Fourteenth Amendment, adopted in 1868 at the height of laissez-faire thinking, sought to protect Americans from oppression by state government, not" }, { "docid": "23407644", "title": "", "text": "§ 1983. Cf. Muckway v. Craft, 789 F.2d 517, 521 (7th Cir.1986) (noting that a § 1983 claim is a tort action, requiring proof of duty, breach, causation, and damages). In order to establish liability under § 1983, Nabozny must show that the defendants acted with a nefarious discriminatory purpose, Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979), and discriminated against him based on his membership in a definable class. Albright v. Oliver, 975 F.2d 343, 348 (7th Cir.1992), aff'd, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Falls v. Town of Dyer, 875 F.2d 146, 148 (7th Cir.1989). As we explained in Shango v. Jurich, 681 F.2d 1091 (7th Cir.1982): The gravamen of equal protection lies not in the fact of deprivation of a right but in the invidious classification of persons aggrieved by the state’s action. A plaintiff must demonstrate intentional or purposeful discrimination to show an equal protection violation. Discriminatory purpose, however, implies more than intent as volition or intent as awareness of consequences. It implies that a decisionmaker singled out a particular group for disparate treatment and selected his course of action at least in part for the purpose of causing its adverse effects on the identifiable group. Id. at 1104 (citations and internal quotations omitted). A showing that the defendants were negligent will not suffice. Nabozny must show that the defendants acted either intentionally or with deliberate indifference. Archie v. City of Racine, 847 F.2d 1211, 1219 (7th Cir.1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 809 (1989); Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir.1983), cert. denied, 465 U.S. 1049, 104 S.Ct. 1325, 79 L.Ed.2d 720 (1984); Chongo, 681 F.2d at 1104; Cf. Muckway, 789 F.2d at 522 (holding that a violation of a state law does not establish an equal protection violation absent proof that the defendant intentionally discriminated against otherwise similarly situated persons). To escape liability, the defendants either must prove that they did not discriminate against Nabozny, or at a bare minimum, the" }, { "docid": "10988797", "title": "", "text": "to remain on leave status indefinitely is in violation of the Equal Protection Clause. The defendants first contend that plaintiffs’ allegation as to their class membership is insufficient to state an equal protection claim, and that the claim fails to allege purposeful or intentional discrimination. The essence of an equal protection claim is that a state actor singled out a particular group for disparate treatment and selected his course of action in order to discriminate for invalid reasons. Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir.1982). While the Supreme Court has yet to find mentally disabled persons a “suspect class” which would subject classifications on the basis of mental disability to strict scrutiny, the Court has held that such classifications must at least have a rational basis. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). The plaintiffs’ complaint alleges that they are members of a class of psychologically disabled officers, and that the defendants’ policy of treating officers with real or perceived psychological disabilities differently from other officers on leave is “based solely on prejudice without any legitimate governmental purpose”. Such an allegation is clearly sufficient to state an equal protection claim. The defendants next argue that the claims against Rodriguez and Bransfíeld are in fact official capacity claims, and for that reason must be dismissed. We agree with the defendants that the claims in Count V are in fact official capacity claims, so we need not address the defendants’ qualified immunity claim and other arguments made as to the plaintiffs’ individual capacity claims. In Count V, plaintiffs seek only declaratory and injunctive relief against Rodriguez and Bransfíeld in them individual capacities. However, the Seventh Circuit has determined that “an action for prospective in-junctive relief against a state official is brought properly in the official’s official capacity.” Akins v. Bd. of Governors of State Colleges and Universities, 840 F.2d 1371, 1377 (7th Cir.1988), vacated on other grounds, 488 U.S. 920, 109 S.Ct. 299, 102 L.Ed.2d 319 (1988). In Scott v. Lacy, the court explained: As a practical matter, a public" }, { "docid": "20321935", "title": "", "text": "due process protections springs from the Illinois statutes which created the prison grievance procedure. Shango v. Jurich, 681 F.2d 1091 (7th Cir.1982), rejects this theory. A liberty interest within the meaning of the fourteenth amendment is a substantive interest of the individual. Id. at 1101-02.. Although state created procedural protections may be evidence of a parent substantive right, they do not in themselves trigger a protected liberty interest. Id. at 1102. Illinois, by statute, has created a prison grievance procedure which entitles inmates to present their complaints to the prison officials. But the grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment. Thus, the Board’s failure to process plaintiff’s grievances as required by A.R. 845 is not actionable under § 1983. Plaintiff’s final contention rests on equal protection grounds. In order to establish an equal protection violation, a plaintiff must show intentional or purposeful discrimination. See Bloomenthal v. Lavelle, 614 F.2d 1139, 1141 (7th Cir.1980). Purposeful discrimination implies that the decision-maker singled out a particular group for disparate treatment and “selected his course of action for the purpose of causing its adverse effects on the identifiable group.” Shango v. Jurich, supra at 1104. Even with the liberal construction accorded pro se pleadings under Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), plaintiff has failed to demonstrate any invidious classification resulting from the Board’s failure to act on his grievances in accordance with A.R. 845. He has not alleged any set of facts implying purposeful, intentional discrimination in the Board’s processing of grievances. An in consistency in prison management, without more, does not constitute a cognizable equal protection claim. Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944), because plaintiff has failed to allege any facts to support a finding that the prison officials had purposefully and intentionally discriminated against him in the processing of his grievances, his equal protection claim cannot" }, { "docid": "5937287", "title": "", "text": "are equally, if not more, violative of the zoning and sign ordinances and that this inconsistent treatment of permit applications constitutes a violation of Scadron’s constitutional rights under the equal protection clause. A statute which is valid on its face may violate the equal protection clause if it is applied in a discriminatory manner. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). In order to state a claim that a zoning ordinance has been applied in violation of the equal protection clause, Scadron must allege that “the ordinance is applied or enforced with a discriminatory purpose.” Scudder v. Town of Greendale, 704 F.2d 999, 1002 (7th Cir. 1983). There must be allegations of “unfair and discriminatory conduct purposefully directed toward plaintiffs.” Id. at 1003, quoting Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1206 (7th Cir.1980). See also Orsinger Outdoor Advertising, Inc. v. Dept. of Highways, 752 P.2d 55, 62 (Colo.1988) (to prove violation of equal protection with respect to discriminatory enforcement of sign ordinance, plaintiff must show “that the enforcement not only proceeded from an unjust and illegal discrimination between persons in similar circumstances but also that the discriminatory enforcement was intentionally or purposefully carried out”). “Discriminatory purpose,” in this sense, “implies more than intent as volition or intent as awareness of consequences. It implies that the decision-maker singled out a particular group for disparate treatment and selected his course of action at least in part for the purpose of causing its adverse effects on the identifiable group.” Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir.1982). In Scadron’s complaint, there is no specific allegation of discriminatory purpose. However, Scadron has requested leave, in conjunction with its briefing of the equal protection issue, to amend its complaint to include allegations that the City intentionally discriminates against small sign companies in the enforcement of its ordinances. According to Scadron, the City treats large sign companies more favorably because large companies can afford to put up numerous signs and can thus be dissuaded from litigating by a compromise which allows them to erect" }, { "docid": "10988796", "title": "", "text": "Fourteenth Amendment of the United States Constitution. To establish an Equal Protection claim, a plaintiff must show “that he or she is a member of a protected class, that he or she is otherwise similarly situated to members of the unprotected class, and that he or she was treated differently from members of the unprotected class”. McMillian v. Svetanoff, 878 F.2d 186, 189 (7th Cir.1989). Plaintiffs allege that they are members of a class of individuals who have been found to be or are thought to be psychologically impaired from performing police duties and who are therefore in the status of being on leave of absence pending their recovery. Such class members are allegedly similarly situated to both physically disabled and non-disabled officers on leave of absence from the police department but are treated differently by the defendants in that they are singled out for separation. Plaintiffs allege that the existence of a policy which singles out for dismissal psychologically disabled officers who are on leave of absence while permitting physically impaired and non-disabled officers to remain on leave status indefinitely is in violation of the Equal Protection Clause. The defendants first contend that plaintiffs’ allegation as to their class membership is insufficient to state an equal protection claim, and that the claim fails to allege purposeful or intentional discrimination. The essence of an equal protection claim is that a state actor singled out a particular group for disparate treatment and selected his course of action in order to discriminate for invalid reasons. Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir.1982). While the Supreme Court has yet to find mentally disabled persons a “suspect class” which would subject classifications on the basis of mental disability to strict scrutiny, the Court has held that such classifications must at least have a rational basis. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). The plaintiffs’ complaint alleges that they are members of a class of psychologically disabled officers, and that the defendants’ policy of treating officers with real or perceived psychological disabilities differently" }, { "docid": "7934958", "title": "", "text": "a particular (presumably historically disadvantaged) group. See Shango v. Jurich, 681 F.2d 1091, 1103-04 (7th Cir.1982); Washington v. Davis, 426 U.S. 229, 247-48, 96 S.Ct. 2040, 2051, 48 L.Ed.2d 597 (1976). As this court observed recently in Triad Associates, Inc. v. Robinson, “governmental disregard of the fundamental dictate of equal treatment is the beginning and end of the equal protection inquiry.” 10 F.3d 492, 500 (7th Cir.1993). Sherwin presents a cognizable equal protection claim since it alleges that it was subjected to differential treatment by the state surveyors based upon the surveyors’ anti-Semitic animus. The district court incorrectly extended the due process injury requirement of Easter Home to all § 1988 cases. The defendants’ anti-Semitic remarks may not by themselves give rise to an equal protection action by Sherwin. See Bell v. City of Milwaukee, 746 F.2d 1205, 1259 (7th Cir.1984) (“derogatory references to racial or ethnic backgrounds by themselves obviously do not rise to the level of a constitutional violation”). However, such verbal abuse accompanied by the imposition of a special administrative burden forms the basis of an equal protection claim. Further, unlike the plaintiffs in Reichenberger, Sherwin does have a constitutional right not to endure the complained of administrative burden; the state survey alleged by Sherwin was in no sense “ordinary” (a description that suggests relatively minor evaluation “errors” by the defendants) but, as alleged, amounted to a malicious broadside that so threatened Sher-win’s interests that it prompted the nursing home to resort to the extraordinary measure of hiring attorneys and appealing directly to supervisors in the Department, rather than awaiting review by the Department’s Quality Assurance Division. The Ninth Circuit, in Flores v. Pierce, 617 F.2d 1386 (9th Cir.1980), cert. denied, 449 U.S. 875,101 S.Ct. 218, 66 L.Ed.2d 96 (1980), reached a similar conclusion. In Flores, two Mexican-Americans attempted to open a restaurant and bar in a town that they antieipat-ed would cater in large part to Mexican-Americans. They applied for á liquor license to the Department of Alcoholic Beverage Control of the State of California (ABC), prompting an official protest from the town’s police chief, mayor" }, { "docid": "19693918", "title": "", "text": "the day on which the argument occurred, when he next returned to work he was removed from the judge’s chambers by court officers who informed him that Judge Beerman had fired him. The officers forced Mr. Sheppard to leave immediately and did not allow him to take his belongings with him. Mr. Sheppard claimed that this incident constituted an unlawful seizure of his person. The district court disagreed, finding that his liberty had never been restrained. See id. at 153. The Second Circuit affirmed, finding that [i]n the present case, as correctly noted by the district court, Sheppard was “free to go anywhere else that he desired,” with the exception of Beerman’s chambers and the court house. ’ Had Beerman retained Sheppard’s car keys or his wallet, then perhaps Sheppard arguably could have been seized, because it would have prevented him from being “free to leave.” (citation omitted). Because there are no such allegations in Sheppard’s complaint, Sheppard has failed to state a claim that his person was seized. Id. Like Mr. Sheppard, the Robinsons were always free to go anywhere they wanted as long as they did not remain in the store. Under such circumstances, Sheppard dictates a finding that no “seizure” occurred. Accordingly, for all the reasons stated above, the court grants the Town Defendants’ motion for summary judgment with respect to plaintiffs’ first cause of action to the extent it rests upon the Fourth Amendment. 4. Fourteenth Amendment — Equal Protection The Fourteenth Amendment provides, in pertinent part, that “[n]o State shall ... deny any person within its jurisdiction the equal protection of the laws.” U.S. Const., amend. 14, § 1 (emphasis added). “To state an equal protection claim, a § 1983 plaintiff must allege that a state actor purposefully discriminated against him because of his identification with a particular (presumably historically disadvantaged) group.” Sherwin Manor Nursing Center, Inc. v. McAuliffe, 37 F.3d 1216, 1220 (7th Cir.1994) (citing Shango v. Jurich, 681 F.2d 1091, 1103-04 (7th Cir.1982); Washington v. Davis, 426 U.S. 229, 247-48, 96 S.Ct. 2040, 2051, 48 L.Ed.2d 597 (1976)); see also Prompt Courier Serv.," } ]

[ { "docid": "12989874", "title": "", "text": "request for a transcript of his trial by reason of the death of the court reporter and the inability of others to read his notes. The Supreme Court affirmed the denial of a new trial in the habeas corpus proceeding, stating: “When, through no fault of the State, transcripts of criminal trials are no longer available because of the death of the court reporter, some practical accommodation must be made.” 373 U.S. 420, 424, 83 S.Ct. 1366, 1368. We believe the loss of the reporter’s notes presents a similar situation and that it is not unreasonable to permit the State to reconstruct the record. In any event, Boykin was decided in 1969. Defendant was convicted in 1952. The Supreme Court has not passed upon the question of whether Boykin is to be retroactively applied. We do not believe that Boykin should be applied retroactively. In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, the Court held that the failure of a federal court to comply with the requirements of Rule 11, Fed.R.Crim.P., with respect to inquiry for determining voluntariness of a guilty plea required a reversal and a new trial. The Court in Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16, refused to give retroactive effect to McCarthy. Upon the basis of the reasoning in Halliday, Boy-kin which deals with inquiries required of a state court prior to accepting a plea of guilty should not be applied retroactively. See United States ex rel. Hughes v. Bundle, 3 Cir., 419 F.2d 116. The judgment denying the writ of ha-beas corpus is affirmed. . The issue of mootness was raised in the trial court and properly rejected. See Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554. Such issue is not raised upon this appeal." } ]

[ { "docid": "567619", "title": "", "text": "explained the rights that Nelson would be relinquishing if he pled guilty. Defense counsel also told Nelson that he would not sponsor a plea of guilty to second degree murder unless Nelson had actually killed the woman. As a result of this discussion, Nelson decided to change his plea. The trial judge did not inquire into the voluntariness of the guilty pleas when he accepted them, nor did he explain to Nelson which rights he was giving up or the elements of the charged offenses. The clerk merely recited each charge, asked Nelson for his plea, and received the response “guilty.” Nelson now contends that his pleas to second degree murder and sodomy were involuntary because he did not understand that by pleading guilty he waived his self-incrimination privilege and his rights to a jury trial and confrontation; he also contends that he did not realize that consecutive sentences could be imposed, and that he was not informed of the elements of the charged offenses. The record does not affirmatively show that Nelson’s pleas were entered “voluntarily and understanding” as required since the Supreme Court’s decision in Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 1713, 23 L.Ed.2d 274 (1969). In cases like the present one tried before Boykin, however, the burden of proving involuntariness lies with the petitioner. Bruce v. Estelle, 536 F.2d 1051, 1058 (5th Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977) (burden of proof); United States ex rel. Curtis v. Zelker, 466 F.2d 1092, 1097-98 (2d Cir.1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1405, 35 L.Ed.2d 612 (1973) (same); Smith v. Cox, 435 F.2d 453, 457-58 (4th Cir.1970), vacated on other grounds sub nom. Slayton v. Smith, 404 U.S. 53, 92 S.Ct. 174, 30 L.Ed.2d 209 (1971) (nonretroactivity); United States ex rel. Hughes v. Rundle, 419 F.2d 116, 118 (3d Cir.1969) (same); see also Porter v. Superintendent, 383 Mass. 111, 417 N.E.2d 1199, 1202 (1981). It was therefore up to the state court to hear Nelson’s case, make findings of fact, and decide whether he met his burden" }, { "docid": "4436567", "title": "", "text": "to the same constitutional test, the result should be the same. We hold that Boykin v. Alabama is not to be applied to guilty pleas entered before the date of that decision. This decision puts the Fifth Circuit in line with other circuits which have considered the problem. United States ex rel Rogers v. Adams, 435 F.2d 1372 (2d Cir. 1970); United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3d Cir. 1970); Smith v. Cox, 435 F.2d 453 (4th Cir. 1970); Meller v. Missouri, 431 F.2d 120 (8th Cir. 1970); Moss v. Craven, 427 F.2d 139 (9th Cir. 1970); Perry v. Crouse, 429 F.2d 1083 (10th Cir. 1970). The voluntary guilty plea waived all non-jurisdictional defenses, so that petitioner cannot now raise issues concerning his rights to a jury trial and confrontation of witnesses. The district court properly denied the petition for writ of habeas corpus on all grounds. Affirmed. . In Ms brief, petitioner also asserts a violation of his Fifth Amendment rights against self-incrimination, which argument has been considered and disposed of by this appeal. . “In deciding whether to apply newly adopted constitutional rulings retroactively, we have considered three criteria: (1) the purpose of the new rule; (2) the extent of reliance upon the old rule; and (3) the effect retroactive application would have upon the administration of justice. E. g., Desist v. United States, ante, [394 U.S.] p. 244 [89 S.Ct. 1030, 22 L.Ed.2d 248] ; Stovall v. Denno, 388 U.S. 293 [87 S.Ct. 1967, 18 L.Ed.2d 1199] (1967) ; Johnson v. New Jersey, 384 U.S. 719 [86 S.Ct. 1772, 16 L.Ed. 2d 882] (1966). In McCarthy we took care to note that our holding was based solely upon the application of Rule 11 and not upon constitutional grounds. Nevertheless, it is appropriate to analyze the question of that decision’s retroactivity in terms of the same criteria we have employed to determine whether constitutionally grounded decisions that depart from precedent should be applied retroactively. See Linkletter v. Walker, 381 U.S. 618, 622-629 [85 S.Ct. 1731, 1733-1737, 14 L.Ed.2d 601] (1965).” Halliday v. United States," }, { "docid": "2589376", "title": "", "text": "by the record. Asserting that Boykin should be applied retroactively, Hendron contends that his guilty plea was invalid because the record does not affirmatively show the plea was given intelligently and voluntarily. This court has held that Boykin should not be applied retroactively. See, Scranton v. Whealon, 514 F.2d 99, 101 (6th Cir. 1975); Lawrence v. Russell, 430 F.2d 718, 720-21 (6th Cir. 1970). In Scranton, we said: Other circuits have decided the same question the same way. United States ex rel. Hughes v. Rundle, 419 F.2d 116, 118 (3d Cir. 1969); Moss v. Craven, 427 F.2d 139, 140 (9th Cir. 1970); Meller v. State of Missouri, 431 F.2d 120, 124 (8th Cir. 1970), cert. denied, 400 U.S. 996, 91 S.Ct. 469, 27 L.Ed.2d 445 (1971); United States ex rel. Rogers v. Adams, 435 F.2d 1372, 1374 (2d Cir., 1970), cert. denied, 404 U.S. 834, 92 S.Ct. 115, 30 L.Ed.2d 64 (1971); Freeman v. Page, 443 F.2d 493, 496 (10th Cir.), cert. denied, 404 U.S. 1001, 92 S.Ct. 569, 30 L.Ed.2d 554 (1971). The Fourth, Fifth and Tenth Circuits have likewise held (in post-Boykin cases) that Boykin does not require the specific judicial colloquy mandated by Rule 11 of the Federal Rules of Criminal Procedure. Wade v. Coiner, 468 F.2d 1059 (4th Cir. 1972); McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974); Stinson v. Turner, 473 F.2d 913 (10th Cir. 1973). 514 F.2d at 101. Accordingly, we agree with the District Court that Hendron’s plea was given intelligently and voluntarily under pre-Boykin standards; consequently, it is unnecessary to consider the other allegations of constitutional deprecations. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); Tollet v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). The judgment of the District Court is affirmed." }, { "docid": "23691838", "title": "", "text": "303, 305, 307 (9th Cir. 1973) (majority and dissenting opinions); United States ex rel. Montgomery v. People, 473 F.2d 1382, 1383 (7th Cir. 1973); Wade v. Coiner, 468 F.2d 1059, 1060 (4th Cir. 1972); State of Missouri v. Turley, 443 F.2d 1313, 1318 (8th Cir. 1971); Vickery v. State of South Carolina, 367 F.Supp. 407 (D.S.C.1973). But cf. United States ex rel. Curtis v. Zelker, 466 F.2d 1092, 1102 (2d Cir. 1972) (dictum); Boykin, 395 U.S. at 247, 89 S.Ct. 1709 (Harlan, J. dissenting). . See also Ray v. Rose, 491 F.2d 285, 289 (6th Cir. 1974); United States v. Cox, 464 F.2d 937, 943 (6th Cir. 1972); Phillips v. Neil, 452 F.2d 337 (6th Cir. 1971). . In Green v. Wingo, 454 F.2d 52, 54 (6th Cir. 1972), we noted, “We confess doubts of the validity of our own understanding of Boykin.” . Various states have provided for an on-the-record inquiry on this question at the time the plea is accepted, as a matter of state law rather than as a constitutional requirement. See, e. g., People v. Kuchulan, 390 Mich. 701, 213 N.W.2d 95 (1973); People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868 (1972); State v. Piacella, 27 Ohio St.2d 92, 271 N.E.2d 852 (1971); State v. Griffey, 29 Ohio App.2d 246, 281 N.E.2d 32 (1972); In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, cert. denied, 398 U.S. 911, 90 S.Ct. 1708, 26 L.Ed.2d 72 (1970) (interpreting Boykin). . Our views do not differ in substance with the Eighth Circuit’s statement in Todd v. Lockhart, 490 F.2d 626, 627-28 (8th Cir. 1974), that allowing evidence at a post-conviction hearing to “cure the otherwise defective plea-taking transcript . . . [does] not return to the pre-Boykin practice of assuming that a defendant represented by counsel has entered a voluntary and intelligent plea. Rather, [it means] that once a state prisoner has demonstrated that the plea taking was not conducted in accordance with Boykin, the state may, if it affirmatively proves in a post-conviction hearing that the plea was voluntary and intelligent, obviate the necessity" }, { "docid": "15657742", "title": "", "text": "on collateral review. 585 F.2d at 113. Similarly, in United States v. Dayton, 604 F.2d 931 (5th Cir. 1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980), we rejected an automatic reversal rule for harmless technical violations of the post-McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), additions to Rule 11 on direct review. . Rule 11, as amended in 1966, provided that a federal court shall not accept such plea or a plea of nolo contendere 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 court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea. . The Supreme Court, in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), said that courts “cannot presume a waiver of these three important federal rights [ — the privilege against compulsory self-incrimination, the right to a jury trial, and the right to confrontation — ] from a silent record.” Id. at 243, 89 S.Ct. at 1712. A year later, the court in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), said that “[t]he new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.” Id. at 747-48 n. 4, 90 S.Ct. at 1468 n. 4. See also North Carolina v. Alford, 400 U.S. 25, 29 n. 3, 31, 91 S.Ct. 160, 163, n. 3, 164, 27 L.Ed.2d 162 (1970). This circuit delineated the scope of Boykin’s requirement and fifth circuit precedent in McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974): [Tjhere is no requirement that there be express articulation and waiver of the three constitutional rights referred to in Boykin, by the defendant at the" }, { "docid": "23691827", "title": "", "text": "knowingly and intelligently entered and that the state trial judge failed to follow procedures required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). One aspect of this claim is the argument that under Boykin, before accepting a guilty plea, a state judge must conduct an on-the-record examination of a defendant in full compliance with Rule 11, Fed.R.Crim.P. Appellant maintains that Boykin was violated because the trial judge failed to advise him of the maximum sentence for the offenses charged, to ascertain whether a factual basis existed for the plea, and to state precisely the charges to which he was pleading. Rule 11 is a federal procedural rule, which must be observed scrupulously by the federal courts. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); United States v. Wolak, 510 F.2d 164 (6th Cir. 1975). The precise terms of Rule 11 are not constitutionally applicable to the state courts. Scranton v. Whealon, 514 F.2d 99 (6th Cir. 1975); Lawrence v. Russell, 430 F.2d 718, 721 (6th Cir. 1970). What Boykin does require has not been fully discussed in this Circuit. Although our decisions have touched upon Boykin, referring to its “affirmative disclosure” requirement, Cochran v. Norvell, 446 F.2d 61, 63 (6th Cir. 1971), no decision has dealt squarely with its meaning. Boykin requires that no guilty plea be accepted “without an affirmative showing that it was intelligent and voluntary.” 395 U.S. at 242, 89 S.Ct. at 1711. Boykin mandates that a conviction based on a guilty plea be reversed unless “the prosecution spread[s] on the record the prerequisites of a valid waiver” of the constitutional rights which a defendant surrenders by pleading guilty. 395 U.S. at 242, 89 S.Ct. at 1712. It is good procedure, therefore, for a state judge to conduct a careful inquiry into the defendant’s understanding of the nature and consequences of his plea. A comprehensive on-the-record inquiry into this matter “forestalls the spin-off of collateral proceedings that seek to probe murky memories.” 395 U.S. at 244, 89 S.Ct. at 1713. If the discussion between defendant" }, { "docid": "6361699", "title": "", "text": "the district court must dismiss the petition without prejudice to enable Willett first to present his unexhaust-ed claims to the state court. E. g., Van Poyck v. Wainwright, 595 F.2d at 1086. MODIFIED AND REMANDED WITH INSTRUCTIONS. . Our holding does not imply that the terms of Fed.R.Crim.P. 11 are constitutionally applicable to the states. See McChesney v. Henderson, 482 F.2d 1101, 1109 (5th Cir. 1973), cert. denied, 414 U.S. 1146, 39 L.Ed.2d 102 (1974); Oaks v. Wainwright, 445 F.2d at 1063 n. 3. But see Purvis v. Connell, 227 Ga. 764, 182 S.E.2d 892, 894 (1971) (state trial judge has same duty of determining voluntariness as federal trial judge under Fed.R.Crim.P. 11). . In Edwards v. Garrison, 529 F.2d 1374, 1376 (4th Cir. 1975), cert. denied, 424 U.S. 950, 96 S.Ct. 1421, 47 L.Ed.2d 355 (1976); Roddy v. Black, 516 F.2d 1380, 1385 (6th Cir. 1975); and Freeman v. Page, 443 F.2d 493, 497 (10th Cir.), cert. denied, 404 U.S. 1001, 92 S.Ct. 569, 30 L.Ed.2d 554 (1971), the fourth, sixth, and tenth circuits found that state courts were not constitutionally required to ascertain the factual bases for pleas before entering judgment on them. In none of these cases, however, did a defendant claim innocence when making his guilty plea. . We require only a showing of some factual basis for the defendant’s plea, not proof of every element of the offense beyond a reasonable doubt, for acceptance of a guilty plea in the face of protestations of innocence. . Galtieri does not bar this court from reviewing the merits of an exhausted claim in a mixed petition when the district court has erroneously reached the merits of that claim. 582 F.2d at 362. . For a lucid discussion of the exhaustion requirement, and of state habeas corpus generally, see Note, Postconviction Remedies in Alabama, 29 Ala.L.Rev. 617, 618-19 passim (1978)." }, { "docid": "10267845", "title": "", "text": "clearly erroneous, and were supported by the evidence. This type of review standing alone may not comply with federal standards. However, since this Court has conducted its own hearing into the matter, the findings of facts are independently based. Peterson alleges that his guilty plea was not made voluntarily and with an understanding of the nature of the charges against him. The trial court, petitioner contends, did not observe the standards promulgated in Missouri Supreme Court Rule 25.04. Rule 25.04, which is precisely the same as Rule 11, F.R.Crim.P., provides that the trial court “shall not accept the plea [of guilty] without first determining that the plea of guilty is made voluntarily with understanding of the nature of the charge.” In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the Supreme Court held that defendant’s guilty plea “must be set aside and the case remanded for another hearing at which he may plead anew” when the transcript of the proceedings shows that the federal trial court failed to comply with the mandate of Rule 11. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), expanded this holding to the states. However, neither McCarthy nor Boykin are to be applied retroactively. Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969); Meller v. Missouri (C.A.8) 431 F.2d 120, 124 (1970), cert. denied 400 U.S. 996, 91 S.Ct. 469, 27 L.Ed.2d 445; Crosswhite v. Swenson (C.A.8) 444 F.2d 648, 650 (1971), cert. denied 405 U.S. 1042, 92 S.Ct. 1320, 31 L.Ed.2d 584. The record is not clear here, in the absence of a transcript, whether the trial court made an inquiry of the petitioner regarding his understanding of the charges and the consequences of his plea of guilty. It is necessary, therefore, to consider the reasoning in United States ex rel. Grays v. Rundle (C.A.3) 428 F.2d 1401 (1970), where the court stated at 1403: Assuming that the state trial court did not conduct, at the time of accepting the guilty plea, an inquiry sufficient to establish that" }, { "docid": "4436566", "title": "", "text": "1166, 22 L.Ed.2d 418 (1969) should not be retro actively applied. While Boykin was concerned with state court procedures, McCarthy dealt with the adequacy of guilty pleas in federal courts. McCarthy held that before a guilty plea could be accepted in a United States District Court under Rule 11 of the Federal Rules of Criminal Procedure, the district judge must first address the defendant personally and determine that the plea was made voluntarily with understanding of the nature of the charge. A silent record in this respect requires that a guilty plea be set aside. Although this decision was made pursuant to the Supreme Court’s supervisory power over the lower federal courts, rather than on the constitutional grounds which fathered Boykin, the court in Halliday used the three criteria usually considered to determine whether newly adopted constitutional rulings should apply retroactively. Inasmuch as the purposes for which the rule in McCarthy was adopted appear to be substantially the same as the reasons for the Boykin rule, it would appear clear that when retroactivity is put to the same constitutional test, the result should be the same. We hold that Boykin v. Alabama is not to be applied to guilty pleas entered before the date of that decision. This decision puts the Fifth Circuit in line with other circuits which have considered the problem. United States ex rel Rogers v. Adams, 435 F.2d 1372 (2d Cir. 1970); United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3d Cir. 1970); Smith v. Cox, 435 F.2d 453 (4th Cir. 1970); Meller v. Missouri, 431 F.2d 120 (8th Cir. 1970); Moss v. Craven, 427 F.2d 139 (9th Cir. 1970); Perry v. Crouse, 429 F.2d 1083 (10th Cir. 1970). The voluntary guilty plea waived all non-jurisdictional defenses, so that petitioner cannot now raise issues concerning his rights to a jury trial and confrontation of witnesses. The district court properly denied the petition for writ of habeas corpus on all grounds. Affirmed. . In Ms brief, petitioner also asserts a violation of his Fifth Amendment rights against self-incrimination, which argument has been considered and disposed" }, { "docid": "23691826", "title": "", "text": "result of his own admission of guilt. That his conviction may have been the result of plea bargaining and that he did not expressly admit his guilt are factors that do not invalidate his plea. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); United States v. Cox, 464 F.2d 937, 943 (6th Cir. 1972). Absent a claim of prosecutorial involve-, ment in perjured testimony, the federal habeas corpus court has no jurisdiction to consider Appellant’s attack on the Veracity of his ex-wife’s charges against him. Burks v. Egeler, 512 F.2d 221 (6th Cir. 1975). Second, Appellant asserts that he was denied the Sixth Amendment right to the effective assistance of counsel. The District Court made explicit findings that Appellant’s counsel rendered him reasonably effective assistance, in accordance with the standards enunciated in Beasley v. United States, 491 F.2d 687 (6th Cir. 1974). The record supports these findings. Third, Appellant argues that his plea was not knowingly and intelligently entered and that the state trial judge failed to follow procedures required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). One aspect of this claim is the argument that under Boykin, before accepting a guilty plea, a state judge must conduct an on-the-record examination of a defendant in full compliance with Rule 11, Fed.R.Crim.P. Appellant maintains that Boykin was violated because the trial judge failed to advise him of the maximum sentence for the offenses charged, to ascertain whether a factual basis existed for the plea, and to state precisely the charges to which he was pleading. Rule 11 is a federal procedural rule, which must be observed scrupulously by the federal courts. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); United States v. Wolak, 510 F.2d 164 (6th Cir. 1975). The precise terms of Rule 11 are not constitutionally applicable to the state courts. Scranton v. Whealon, 514 F.2d 99 (6th Cir. 1975); Lawrence v. Russell, 430 F.2d 718," }, { "docid": "15657743", "title": "", "text": "rights [ — the privilege against compulsory self-incrimination, the right to a jury trial, and the right to confrontation — ] from a silent record.” Id. at 243, 89 S.Ct. at 1712. A year later, the court in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), said that “[t]he new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.” Id. at 747-48 n. 4, 90 S.Ct. at 1468 n. 4. See also North Carolina v. Alford, 400 U.S. 25, 29 n. 3, 31, 91 S.Ct. 160, 163, n. 3, 164, 27 L.Ed.2d 162 (1970). This circuit delineated the scope of Boykin’s requirement and fifth circuit precedent in McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974): [Tjhere is no requirement that there be express articulation and waiver of the three constitutional rights referred to in Boykin, by the defendant at the time of acceptance of his guilty plea, if it appears from the record that the accused’s plea was intelligently and voluntarily made, with knowledge of its consequences. Id. at 1110. Accord, United States v. Caston, 615 F.2d at 116 n. 4; United States v. Frontero, 452 F.2d 406, 415 (5th Cir. 1971). . Rule 11 does not require warning of such collateral consequences as ineligibility for parole. Herrera v. United States, 507 F.2d 143, 144 (5th Cir. 1975); Rosas v. United States, 505 F.2d 115, 116 (5th Cir. 1974), cert. denied, 421 U.S. 1001, 95 S.Ct. 2402, 44 L.Ed.2d 670 (1975); subjection to a mandatory special parole term or a parole term without statutory maximum, United States v. Timmreck, 441 U.S. at 784-85, 99 S.Ct. at 2087-88; United States v. Crook, 607 F.2d at 672; disenfranchisement, United States v. Dayton, 604 F.2d at 937; Waddy v. Davis, 445 F.2d 1, 3 (5th Cir. 1971); loss of other citizenship rights, United States v. Often, 439 F.2d 1079, 1080 (5th Cir. 1971); Meaton v. United States, 328" }, { "docid": "23710470", "title": "", "text": "that these rights were set out to demonstrate the gravity of the trial court’s responsibility, but that no procedural requirement was imposed that they be enumerated. The main purpose is “ . to make sure [the accused] has full understanding of what the plea connotes and of its consequence.” 395 U.S. at 244, 89 S.Ct. at 1712. The Supreme Court of California has interpreted Boykin as appellant urges. See In re Tahl, 1 Cal.3d 122, 81 Cal. Rptr. 577, 460 P.2d 449, 455-456, cert. denied, 398 U.S. 911, 90 S.Ct. 1708, 26 L.Ed.2d 72. However, as we have said, we do not believe that Boykin requires the enumeration of rights and the multiple waivers contended for by appellant. Instead •sye agree with the Fourth and Fifth Circuits that such detailed waivers on the record are not required by Boykin. See Wade v. Coiner, 468 F.2d 1059, 1061 (4th Cir.); United States v. Frontero, 452 F.2d 406, 415 (5th Cir.). And, aside from the new Boykin requirement, we have held earlier that determination of a guilty plea’s voluntariness does not depend on a detailed showing of waiver of the three rights stressed by appellant. Freeman v. Page, 443 F.2d 493, 496 (10th Cir.), cert. denied 404 U.S. 1001, 92 S.Ct. 569, 30 L.Ed.2d 554; Arbuckle v. Turner, 440 F.2d 586, 589 (10th Cir.). Thus, we are persuaded that the issue is instead whether the record affirmatively shows that the guilty plea was intelligent and voluntary. This record reveals that appellant was specifically questioned as to his awareness of the right to trial by jury and to confront and cross-examine witnesses. He was informed that the State would have to prove all the elements of the crime charged. He was asked if he understood that the plea would admit the stealing of personal property of a value in excess of $50 from Smith’?, Food King store, and he replied affirmatively. And he said he understood that he could be sentenced to imprisonment from one to ten years. Appellant said that there were no threats or promises made to obtain his plea. He" }, { "docid": "15346119", "title": "", "text": "correct constitutional defects in his conviction. Cf. Johnson v. New Jersey, supra, at 730 [384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966)]. * * In McCarthy we noted that the practice we were requiring had been previously followed by only one Circuit; that over 85% of all convictions in the federal courts are obtained pursuant to guilty pleas; and that prior to Rule ll’s recent amendment, not all district judges personally questioned defendants before accepting their guilty pleas. Thus, in view of the general application of Rule 11 in a manner inconsistent with our holding in McCarthy, and in view of the large number of constitutionally valid convictions that may have been obtained without full compliance with Rule 11, we decline to apply McCarthy retroactively.” Halliday v. United States, supra at 833, 89 S.Ct. at 1499. Appellant’s counsel now points to Boykin, supra (decided after the District Judge’s opinion in our instant case) as making Rule 11 fully applicable to state court criminal proceedings. We do not find language in Boykin to support this view and if we did, we believe that the prospective rule adopted in relation to federal cases in Halliday, supra, would apply a fortiori to state court cases. Lawrence v. Russell, 430 F.2d 718, 720-21 (6th Cir. 1970), cert. denied, 401 U.S. 920, 91 S.Ct. 907, 27 L.Ed.2d 823 (1971). Other circuits have decided the same question the same way. United States ex rel. Hughes v. Rundle, 419 F.2d 116, 118 (3d Cir. 1969); Moss v. Craven, 427 F.2d 139, 140 (9th Cir. 1970); Meller v. State of Missouri, 431 F.2d 120, 124 (8th Cir. 1970), cert. denied, 400 U.S. 996, 91 S.Ct. 469, 27 L.Ed.2d 445 (1971); United States ex rel. Rogers v. Adams, 435 F.2d 1372, 1374 (2d Cir. 1970), cert. denied, 404 U.S. 834, 92 S.Ct. 569, 30 L.Ed.2d 554 (1971); Freeman v. Page, 443 F.2d 493, 496 (10th Cir.), cert. denied, 404 U.S. 1001, 92 S.Ct. 115, 30 L.Ed.2d 64 (1971). The Fourth, Fifth and Tenth Circuits have likewise held (in post -Boykin cases) that Boykin does not require the" }, { "docid": "567620", "title": "", "text": "entered “voluntarily and understanding” as required since the Supreme Court’s decision in Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 1713, 23 L.Ed.2d 274 (1969). In cases like the present one tried before Boykin, however, the burden of proving involuntariness lies with the petitioner. Bruce v. Estelle, 536 F.2d 1051, 1058 (5th Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977) (burden of proof); United States ex rel. Curtis v. Zelker, 466 F.2d 1092, 1097-98 (2d Cir.1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1405, 35 L.Ed.2d 612 (1973) (same); Smith v. Cox, 435 F.2d 453, 457-58 (4th Cir.1970), vacated on other grounds sub nom. Slayton v. Smith, 404 U.S. 53, 92 S.Ct. 174, 30 L.Ed.2d 209 (1971) (nonretroactivity); United States ex rel. Hughes v. Rundle, 419 F.2d 116, 118 (3d Cir.1969) (same); see also Porter v. Superintendent, 383 Mass. 111, 417 N.E.2d 1199, 1202 (1981). It was therefore up to the state court to hear Nelson’s case, make findings of fact, and decide whether he met his burden of proof. The role of federal courts in habeas corpus proceedings concerning state court convictions is generally limited to determining whether a federal constitutional violation has occurred; the fact findings of state courts are entitled to a presumption of correctness unless they are not fairly supported by the record. Sumner v. Mata, 455 U.S. 591, 591-92, 102 S.Ct. 1303, 1304, 71 L.Ed.2d 480 (1981). Having reviewed the record thoroughly, we agree with the district court that the Superior Court’s fact findings are adequately supported, and therefore accept them as binding. Nelson’s contention that he was not informed of the rights he waived by pleading guilty is flatly contrary to the Superior Court’s explicit finding that he “had a first hand understanding of his right to a jury trial and his right to confront the witnesses against him,” and that he “intelligently waived” these rights along with his privilege against self-incrimination. Although the record in this case is sketchy, we note that the state court’s findings are supported by the hearing testimony of Nelson’s trial counsel," }, { "docid": "9407667", "title": "", "text": "referring to Harris and once referring to the constitutional standard of voluntariness expressed in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1969). This demonstrates that “consequences” means the same thing in both the Rule 11 and constitutional contexts, or, alternatively, that Harris rested upon constitutional principles. . “The substance of the inquiry [required in state court to pass constitutional scrutiny] will, of course, be analogous to a Rule 11 colloquy.” Wade v. Coiner, 468 F.2d 1059, 1060 (4th Cir. 1972). . Michigan allows for parole in all cases where an indeterminate sentence is meted out, including a sentence of a term of years to life. Mich. Comp.L.Ann. § 791.234. Thus, parole is generally available in Michigan. . In the case of a plea entered subsequent to Boykin, that understanding must appear affirmatively on the record. Since this plea oc curred before the decision in Boykin, Appellant’s understanding did not necessarily have to be laid out on the record. See Hendron v. Cowan, 532 F.2d 1081, 1083 (6th Cir. 1976), which the majority cites for the proposition that Boykin will not be applied retroactively. While Hendron does contain language to that effect, the cases cited for that proposition, Scranton v. Whealon, 514 F.2d 99, 101 (6th Cir. 1975), and Lawrence v. Russell, 430 F.2d 718, 720-21 (6th Cir. 1970), do not so hold. Scranton and Lawrence held only that Boykin did not require Rule 11 to be applied retroactively. While I consider the retroactivity of Boykin unsettled, it is unnecessary to decide that issue here. Even under Kercheval, decided in 1927, and Machibroda, decided in 1962, a defendant had to fully understand the consequences of his plea, which cannot be demonstrated in this case even by going outside of the record. See footnote 8 and accompanying text, infra. . “The burden as to voluntariness is on the Government.” Harris, supra, 426 F.2d at 101. . This result would not open the floodgates to similar habeas petitions. Since parole is so widely available, there can be only relatively few people presently incarcerated after entering a plea" }, { "docid": "9407656", "title": "", "text": "should not accept a plea of guilty until it is satisfied that “the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.” In accord with the majority of other circuits, our circuit held that the language cited required that a defendant be informed during the plea-taking procedure of his ineligibility for parole. Harris v. United States, 426 F.2d 99, 101 (6th Cir. 1970); see Wolak v. United States, 510 F.2d 164, 166 (6th Cir. 1975) (per curiam). As amended, the rule requires that the defendant must be informed of the “mandatory minimum penalty provided by the law,” Rule 11(c)(1). Accord, ABA Standards Relating to Pleas of Guilty, § 1.4(c)(ii) (Approved Draft 1968). Whether this language imposes a requirement similar to the old is not yet decided. See generally, Ruip v. United States, 555 F.2d 1331, 1336 (6th Cir. 1977). Our circuit, however, has expressly held that Rule 11 does not apply to state court proceedings. Roddy v. Black, 516 F.2d 1380, 1383 (6th Cir.), cert. denied 423 U.S. 917, 96 S.Ct. 226, 46 L.Ed.2d 147 (1975); Lawrence v. Russell, 430 F.2d 718, 721 (6th Cir. 1970), cert. denied 401 U.S. 920, 91 S.Ct. 907, 27 L.Ed.2d 823 (1971). Petitioner principally relies on 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), and United States ex rel. Pebworth v. Conte, 489 F.2d 266 (9th Cir. 1974). We find Cuthrell unpersuasive and Pebworth inapposite. We recognize that dicta in Cuthrell, 475 F.2d at 1336, tend to indicate that ineligibility for parole is a “direct” as opposed to “collateral” consequence of a guilty plea requiring advice to the defendant. We decline, however, to endorse the dicta as a constitutional requirement in this circuit. Significantly, the only authority cited by Cuthrell as support are federal cases decided under Rule 11: Moody v. United States, 469 F.2d 705, 708 (8th Cir. 1972); Paige v. United States, 443 F.2d 781, 782-83 (4th Cir. 1971). In United States ex rel. Pebworth v. Conte, supra, the" }, { "docid": "9407668", "title": "", "text": "which the majority cites for the proposition that Boykin will not be applied retroactively. While Hendron does contain language to that effect, the cases cited for that proposition, Scranton v. Whealon, 514 F.2d 99, 101 (6th Cir. 1975), and Lawrence v. Russell, 430 F.2d 718, 720-21 (6th Cir. 1970), do not so hold. Scranton and Lawrence held only that Boykin did not require Rule 11 to be applied retroactively. While I consider the retroactivity of Boykin unsettled, it is unnecessary to decide that issue here. Even under Kercheval, decided in 1927, and Machibroda, decided in 1962, a defendant had to fully understand the consequences of his plea, which cannot be demonstrated in this case even by going outside of the record. See footnote 8 and accompanying text, infra. . “The burden as to voluntariness is on the Government.” Harris, supra, 426 F.2d at 101. . This result would not open the floodgates to similar habeas petitions. Since parole is so widely available, there can be only relatively few people presently incarcerated after entering a plea of guilty to an offense for which parole was not available with the defendant being unaware of that fact. This case, for example, involved a plea of guilty to the most serious offense of which Appellant could have been convicted after trial, i. e., first degree murder. The trial judge himself was surprised that someone would plead guilty to the most serious offense possible and he indicated that he had never seen such a plea before." }, { "docid": "10267846", "title": "", "text": "with the mandate of Rule 11. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), expanded this holding to the states. However, neither McCarthy nor Boykin are to be applied retroactively. Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969); Meller v. Missouri (C.A.8) 431 F.2d 120, 124 (1970), cert. denied 400 U.S. 996, 91 S.Ct. 469, 27 L.Ed.2d 445; Crosswhite v. Swenson (C.A.8) 444 F.2d 648, 650 (1971), cert. denied 405 U.S. 1042, 92 S.Ct. 1320, 31 L.Ed.2d 584. The record is not clear here, in the absence of a transcript, whether the trial court made an inquiry of the petitioner regarding his understanding of the charges and the consequences of his plea of guilty. It is necessary, therefore, to consider the reasoning in United States ex rel. Grays v. Rundle (C.A.3) 428 F.2d 1401 (1970), where the court stated at 1403: Assuming that the state trial court did not conduct, at the time of accepting the guilty plea, an inquiry sufficient to establish that the plea was knowingly and understanding^ made, the totality of the circumstances in the record before the District Court . [including] the 1967 hearing on the post-conviction petition [will justify] findings and conclusions that the plea was “knowingly and voluntarily entered” and was not “improperly induced.” In a later case, United States ex rel. Black v. Russell (C.A.3) 435 F.2d 546 (1970), the same court stated: It is clear from these cases that even on a silent record, if a petitioner was represented by counsel when he entered his plea of guilty, as in the case here, the presumption is that the plea was the voluntary product of an intelligent and knowing act. Here, petitioner was represented by employed counsel, who had been licensed to practice law in the State of Missouri for 24 years at the time he represented Peterson. The record shows that Mason was a highly respected and able attorney who had handled many criminal defendants. Both the trial judge and petitioner’s counsel testified that as a general practice, defendants who entered" }, { "docid": "15346120", "title": "", "text": "this view and if we did, we believe that the prospective rule adopted in relation to federal cases in Halliday, supra, would apply a fortiori to state court cases. Lawrence v. Russell, 430 F.2d 718, 720-21 (6th Cir. 1970), cert. denied, 401 U.S. 920, 91 S.Ct. 907, 27 L.Ed.2d 823 (1971). Other circuits have decided the same question the same way. United States ex rel. Hughes v. Rundle, 419 F.2d 116, 118 (3d Cir. 1969); Moss v. Craven, 427 F.2d 139, 140 (9th Cir. 1970); Meller v. State of Missouri, 431 F.2d 120, 124 (8th Cir. 1970), cert. denied, 400 U.S. 996, 91 S.Ct. 469, 27 L.Ed.2d 445 (1971); United States ex rel. Rogers v. Adams, 435 F.2d 1372, 1374 (2d Cir. 1970), cert. denied, 404 U.S. 834, 92 S.Ct. 569, 30 L.Ed.2d 554 (1971); Freeman v. Page, 443 F.2d 493, 496 (10th Cir.), cert. denied, 404 U.S. 1001, 92 S.Ct. 115, 30 L.Ed.2d 64 (1971). The Fourth, Fifth and Tenth Circuits have likewise held (in post -Boykin cases) that Boykin does not require the specific judicial colloquy mandated by Rule 11 of the Federal Rules of Criminal Procedure. Wade v. Coiner, 468 F.2d 1059 (4th Cir. 1972); McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974); Stinson v. Turner, 473 F.2d 913 (10th Cir. 1973). For the reasons stated above, the judgment of the District Court is affirmed. . In his colloquy with the sentencing judge, appellant quite voluntarily confessed the crime: THE COURT: The Court will accept the recommendation of the prosecutor and will accept the plea of guilty to murder in the second degree, a lesser but included offense to the first count of the indictment. Is there anything that you care to tell this Court, anything you care to say to this Court before he imposes sentence? THE DEFENDANT: Yes, sir, there is, your Honor. There is. I would like to show my gratitude to the Court for giving me another opportunity in order to face society as a man and I’d like to" }, { "docid": "2589375", "title": "", "text": "This decision was subsequently affirmed by the Kentucky Court of Appeals on November 9, 1973. Hendron v. Commonwealth, Ky., 501 S.W.2d 795. Having exhausted all post conviction remedies in the Kentucky courts, Hendron filed a petition for writ of habeas corpus in the District Court on December 12, 1973. On his appeal Hendron contends: 1) the record shows that his plea of guilty was not voluntary under the standards prevailing at the time the plea was entered (pre-Boykin); and, 2) the standards enunciated by the Supreme Court in Boykin v. Alabama, 395 U.S. 238, 69 S.Ct. 1302, 93 L.Ed. 1879 (1969), should be applied retroactively and that he should be afforded relief since the record fails to show compliance with those standards. We affirm. The District Court made findings of fact that the plea of guilty was prompted by the overwhelming evidence against him, and that at the time of the entry of the plea, Hendron was informed of the nature of the indictment and the consequences of pleading guilty. These findings are fully supported by the record. Asserting that Boykin should be applied retroactively, Hendron contends that his guilty plea was invalid because the record does not affirmatively show the plea was given intelligently and voluntarily. This court has held that Boykin should not be applied retroactively. See, Scranton v. Whealon, 514 F.2d 99, 101 (6th Cir. 1975); Lawrence v. Russell, 430 F.2d 718, 720-21 (6th Cir. 1970). In Scranton, we said: Other circuits have decided the same question the same way. United States ex rel. Hughes v. Rundle, 419 F.2d 116, 118 (3d Cir. 1969); Moss v. Craven, 427 F.2d 139, 140 (9th Cir. 1970); Meller v. State of Missouri, 431 F.2d 120, 124 (8th Cir. 1970), cert. denied, 400 U.S. 996, 91 S.Ct. 469, 27 L.Ed.2d 445 (1971); United States ex rel. Rogers v. Adams, 435 F.2d 1372, 1374 (2d Cir., 1970), cert. denied, 404 U.S. 834, 92 S.Ct. 115, 30 L.Ed.2d 64 (1971); Freeman v. Page, 443 F.2d 493, 496 (10th Cir.), cert. denied, 404 U.S. 1001, 92 S.Ct. 569, 30 L.Ed.2d 554 (1971). The Fourth," } ]

[ { "docid": "1980207", "title": "", "text": "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). In determining whether an official is entitled to qualified immunity, we must consider (1) whether the plaintiff has identified a specific federal statutory or constitutional right that has been allegedly violated, (2) whether that right was so clearly established as to alert a reasonable official to its parameters, and (3) whether a reasonable officer could have believed his or her conduct was lawful. Newell v. Sauser, 79 F.3d 115, 117 (9th Cir.1996). The plaintiff bears the initial burden of proving that the right was clearly established. Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991). To be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (emphasis added). Further, the right asserted must be “clearly established at the time of the challenged actions.” Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985) (emphasis added). Under this test, the plaintiff must offer more than general eonclusory allegations” that the defendants violated a constitutional right. Backlund v. Barnhart, 778 F.2d 1386, 1389 (9th Cir.1985). Thus, to support a judgment, the plaintiff “must show that the particular facts of his ease support a claim of clearly established right.” Id. Sweaney has not cited any case that holds that the Fourth and Fourteenth Amendment protect a parent’s right to inflict corporal punishment upon a child. The absence of any authority directly on point is not fatal to a section 1983 claim. Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir.1997). A right is clearly established “[i]f the only reasonable conclusion from binding authority were that the disputed right existed.” Id. Sweaney relies on several Supreme Court decisions in support of her argument that the only reasonable conclusion from the case law published prior to the date Deputy Michie filed her report is that" } ]

[ { "docid": "23512720", "title": "", "text": "166-67, 105 S.Ct. 3099, 3105-06, 87 L.Ed.2d 114 (1985). This interlocutory order is immediately appealable under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985); Greason v. Kemp, 891 F.2d 829, 831 n. 4 (11th Cir.1990). The Supreme Court, in Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), established the following test for determining whether a public official can claim qualified immunity: “[G]overnment officials ... generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Courts evaluate the official’s conduct under an objective, reasonable person standard; the relevant question on a motion for summary judgment based on a defense of qualified immunity is whether a reasonable official could have believed his or her actions were lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred. Anderson v. Creighton, 483 U.S. 635, 642, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987); Herren v. Bowyer, 850 F.2d 1543, 1545-46 (11th Cir.1988). Thus, the qualified immunity defense provides ample protection to all except the plainly incompetent or those who knowingly violate the law. Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). This familiar standard presents two distinct questions of law for this court to consider in determining whether the district court erred in refusing to grant summary judgment. First, we must determine whether the legal norms allegedly violated by the defendants were clearly established at the time the defendants acted. Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir.1988). If the law that the defendants allegedly violated was not clearly established, then the defendants are entitled to qualified immunity. See Daniel v. Taylor, 808 F.2d 1401, 1403 (11th Cir.1986) (holding that to be entitled to qualified immunity, defendants need only show that it is an unsettled question of law whether plaintiff had a right not to be detained without" }, { "docid": "9362147", "title": "", "text": "the time of Defendants’ alleged misconduct. It is thus RECOMMENDED that the Court find Defendants entitled to qualified immunity from suit on this claim and DISMISS Count 2. 1. Applicable Law The doctrine of qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Qualified immunity shields government officials performing discretionary functions from liability for civil damages, insofar as their conduct does not violate clearly established rights of which a reasonable person would have known, in order to “avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.” 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.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). It is an immunity from suit rather than a mere defense to liability. Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). “[Qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). It ensures that “officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.1992). Whether a government official is entitled to qualified immunity requires a two-part analysis: First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. 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. Qualified immunity is applicable unless the official’s" }, { "docid": "23216980", "title": "", "text": "immunity “ ‘provides ample support to all but the plainly incompetent or those who knowingly violate the law.’ ” Burns v. Reed, 500 U.S. 478, 494-95, 111 S.Ct. 1934, 1944, 114 L.Ed.2d 547 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986)). “Therefore, regardless of whether the constitutional violation occurred, the officer should prevail if the right asserted by the plaintiff was not ‘clearly established’ or the officer could have reasonably believed that his particular conduct was lawful.” Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991) (emphasis added). Furthermore, “[t]he entitlement is an immunity from suit rather than a mere defense to liability; ... it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). The qualified immunity test requires a two-part analysis: “(1) Was the law governing the official’s conduct clearly established? (2) Under that law, could a reasonable officer have believed the conduct was lawful?” Act-Up!, 988 F.2d at 871; see also Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir.1988), cert. denied, 490 U.S. 1075, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989). 1. Retaliation Claim: Causes of Action #1, # k, a/nd #10 First, the law governing defendants’ conduct was clearly established. Specifically, the law clearly established that defendants cannot transfer a prisoner from one correctional institution to another in order to punish the prisoner for exercising his First Amendment right to pursue civil rights litigation in the courts. See Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985). Because the law governing defendants’ conduct was clearly established, we must determine whether a reasonable prison official could have believed the conduct was lawful. See Act-Up!, 988 F.2d at 871. A reasonable prison official could have believed the transfer was lawful if he were advancing a legitimate penological goal arid his means were narrowly tailored to achieve that goal. Rizzo, 778 F.2d at 532. Legitimate goals of a correctional institution include the preservation of internal order and discipline and the" }, { "docid": "21884739", "title": "", "text": "act in good faith. Hutton, 919 F.2d at 1537. The plaintiff must meet this burden by establishing that “the defendant public official’s actions ‘violated clearly established constitutional law.’ ” Id. (citations omitted). The second prong of the objective-reasonableness test has two sub-parts. First, the court must find that the constitutional law in question was clearly established when the alleged violation occurred. Id. at 1538. Second, the court must find that “there is a genuine issue of fact regarding the government official’s engaging in conduct violative of the clearly established law.” Id. “Clearly established” means that “the contours of the [violated] right must be sufficiently clear that a reasonable official would know that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640,107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Under this standard, qualified immunity is available to protect “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). To defeat a qualified immunity defense, the plaintiff bears the burden of showing that the “legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or, ... the law clearly proscribed the actions defendant took.” Barts v. Joyner, 865 F.2d 1187, 1190 (11th Cir.), cert. denied, 493 U.S. 831, 110 S.Ct. 101, 107 L.Ed.2d 65 (1989) (quoting Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816-17, 86 L.Ed.2d 411 (1985)). In determining whether the plaintiff meets this burden, the court is guided by the Eleventh Circuit’s direction in Nicholson v. Georgia Dept. of Human Resources, 918 F.2d 145 (11th Cir.1990): In satisfying this burden, the plaintiff cannot point to sweeping propositions of law and simply posit that those propositions are applicable. Instead, the plaintiff must draw the court’s attention toward a more particularized and fact-specific inquiry. Under this inquiry, the plaintiff need not •point to one or more cases that resolved the precise factual issues at issue in his or her case. [Although the standard is fact-specific, it is not one of" }, { "docid": "13655413", "title": "", "text": "could have a direct effect on the stream of commerce in Michigan. Thus, Michigan had a substantial interest in resolving this case — the provision of a forum to resident plaintiffs, as well as non-resident defendants who purposely availed themselves of acting in and causing consequences in the forum state. Because we conclude that all three of the Southern Machine tests have been satisfied, we hold that defendants Condon and General Morgan are subject to personal jurisdiction in the state of Michigan. C. Plaintiffs argue, on appeal, that the district court erred in dismissing their complaint against defendants Condon and General Morgan as barred by the doctrine of qualified immunity. We disagree. Because the defendants did not violate clearly established federal law or knowingly anticipate that their conduct would give rise to constitutional claims, defendants retain the protections of qualified immunity. To minimize the social costs that would result from allowing damage suits against federal officials acting within the scope of their employment, the Supreme Court has granted such officials qualified immunity from suit. See, e.g., Anderson v. Creighton, 483 U.S. 635, 638,107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). To lose the protections of qualified immunity, the federal officials must have violated clearly established law. See Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985). Moreover, 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, 1096, 89 L.Ed.2d 271 (1986). If federal officials should have known that their conduct would give rise to personal liability for breaching plaintiffs’ constitutional rights, then the officials lose the protections of qualified immunity. See Anderson, 483 U.S. at 641, 107 S.Ct. at 3040. Plaintiffs’ allegations in the complaint should be used to determine the appropriateness of defendants’ qualified immunity defense. See Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. In the case at bar, plaintiffs complained that defendants violated their constitutional rights by demanding and ordering AM General to fire them. The district court found, however, that plaintiffs’ allegations were" }, { "docid": "3695715", "title": "", "text": "a judicial attempt to balance the realization that, when government officials abuse their offices, “action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees,” with the corresponding fear that subjecting such officials to monetary liability will unduly inhibit officials in the discharge of their duties. Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982); see also Mitchell v. Rice, 954 F.2d 187, 190 (4th Cir.1992). To accommodate these conflicting concerns, the Supreme Court has made qualified immunity available to government officials (federal, state and local) performing discretionary functions “insofar as their conduct does not violate clearly established statutory or constitu tional rights of which a reasonable person would have known.” Id. 457 U.S. at 818, 102 S.Ct. at 2738. See, e.g. Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”); Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985) (officials are immune unless “the law clearly proscribed the actions” they took); See also Hunter v. Bryant, — U.S.-, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam ); Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Plaintiff, in the present case, contends that the defendant officers are not entitled to qualified immunity for two reasons: 1) low-level police officers, such as defendants, perform only ministerial, not discretionary functions; and 2) even if the officers do perform discretionary functions, their conduct in this case did violate clearly established constitutional rights of both Robbie and the plaintiff. For the reasons set forth below, the court finds that, in their individual capacities, the defendant officers have met the requirements for qualified immunity announced in Harlow and its progeny. The officers, therefore, are entitled to summary judgment in their favor on all claims made by plaintiff in Count I and Count IV. Discretionary Conduct v. Ministerial Conduct In Harlow, the Supreme Court specifically held that “[gjovernment officials performing discretionary functions, generally are shielded from" }, { "docid": "18302902", "title": "", "text": "(7th Cir.1995) (qualified immunity is not a defense which is available to government employees or officials who are sued in their official capacities for prospective injunctive relief). To defeat a qualified immunity defense, a plaintiff bears the burden of demonstrating that “the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or, ... the law clearly proscribed the actions the defendant ... took.” Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). See also Eversole v. Steele, 59 F.3d 710, 717 (7th Cir.1995); Kemats v. O’Sullivan, 35 F.3d 1171, 1176 (7th Cir.1994); Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir.1988). “The words ‘clearly established ... constitutional rights’ may not be used to read the defense of immunity out of federal tort law by the facile expedient of stating constitutional rights in the most general possible terms .... The right must be sufficiently particularized to put potential defendants on notice that their conduct probably is unlawful.” Azeez v. Fairman, 795 F.2d 1296, 1301 (7th Cir.1986) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. 2727). Thus, the Supreme Court of the United States has observed that “the qualified immunity defense ... provides ample protection to all but the plainly incompetent or those who knowingly violate that law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). In Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004), the Court stated, “[T]he right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 198-99, 125 S.Ct. 596 (quoting Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id." }, { "docid": "16106638", "title": "", "text": "will inhibit public officials in the discharge of their duties. Qualified immunity has therefore been recognized to protect ‘all but the plainly incompetent or those who knowingly violate the law.’ Johnston v. City of Houston, 14 F.3d 1056, 1059 (5th Cir.1994) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). “Whether a government official is entitled to qualified immunity ‘generally turns on the “objective reasonableness of the action” assessed in light of the legal rules that were “clearly established” at the time it was taken.’ ” Johnston, 14 F.3d at 1059 (quoting Texas Faculty Ass’n v. University of Tex. at Dallas, 946 F.2d 379, 389 (5th Cir.1991) (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987))); see Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Anderson, 483 U.S. at 638, 107 S.Ct. 3034; Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Harlow, 457 U.S. at 818, 102 S.Ct. 2727; Petta v. Rivera, 143 F.3d 895, 899-900 (5th Cir.1998); Tamez, 118 F.3d at 1095 n. 5; Dunn v. Denk, 79 F.3d 401, 403 (5th Cir.1996). A defendant “is entitled to qualified immunity unless he violated a constitutional right that was clearly established at the time of his conduct.” Blackwell, 34 F.3d at 302-03; see Harper v. Harris County, 21 F.3d 597, 600 (5th Cir.1994). In considering a claim of qualified immunity, the court must make a two-step inquiry: First, the court must determine whether the plaintiff has alleged a violation of a clearly established constitutional right. If the plaintiff fails this step, the defendant is entitled to qualified immunity. If [he] is successful, the issue becomes the objective legal reasonableness of the defendant’s conduct under the circumstances. Baker, 75 F.3d at 198 (citations and internal quotations omitted); see Nerren v. Livingston Police Dep’t, 86 F.3d 469, 473 (5th Cir.1996); Harper, 21 F.3d at 600; Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir.1993). A legal right is clearly established if the contours of the right are sufficiently" }, { "docid": "9795944", "title": "", "text": "plainly incompetent or those who knowingly violate the law.’ ” Burns v. Reed, 500 U.S. 478, 494-95, 111 S.Ct. 1934, 1943-44, 114 L.Ed.2d 547 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). “Therefore, regardless of whether the constitutional violation occurred, the officer should prevail if the right asserted by the plaintiff was not ‘clearly established’ or the officer could have reasonably believed that his particular conduct was lawful.” Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991) (emphasis supplied). Furthermore, “[t]he entitlement is an immunity from suit rather than a mere defense to liability; ... it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985). The qualified immunity test requires a two-part analysis: “(1) Was the law governing the official’s conduct clearly established? (2) Under that law, could a reasonable officer have believed the conduct was lawful?” Act Up!, 988 F.2d at 871; see also Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir.1988), cert. denied, 490 U.S. 1075, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989). 1. Retaliation Claim: Causes of Action # 1, # b and # 10 First, the law governing defendants’ conduct was clearly established. Specifically, the law clearly established that defendants cannot transfer a prisoner from one correctional institution to another in order to punish the prisoner for exercising his First Amendment right to pursue civil rights litigation in the courts. See Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985). Because the law governing defendants’ conduct was clearly established, we must determine whether a reasonable prison official could have believed the conduct was lawful. See Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993). A reasonable prison official could have believed the transfer was lawful if he were advancing a legitimate penological goal and his means were narrowly tailored to achieve that goal. Rizzo, 778 F.2d at 532. Legitimate goals of a correctional institution include the preservation of internal order and discipline and the maintenance" }, { "docid": "9795943", "title": "", "text": "complainer, but thought that Sehroeder only complained through internal channels, filing administrative grievances. Robelido indicated, in essence, that the staff was unpleasantly surprised to discover that Sehroeder also complained through external channels, filing complaints and motions with the courts. Complaint at 24-25, ¶¶ 87, 89. Accordingly, we conclude that Sehroeder did file an opposing affidavit to defendants’ motion for summary judgment. We now turn to the merits of defendants’ assertion of qualified immunity. B. .QUALIFIED IMMUNITY We review de novo the district court’s denial of summary judgment on qualified immunity grounds. Act Up Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993); Baker v. Racansky, 887 F.2d 183, 185 (9th Cir. 1989). The defense 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The rule of qualified immunity “ ‘provides ample support to all but the plainly incompetent or those who knowingly violate the law.’ ” Burns v. Reed, 500 U.S. 478, 494-95, 111 S.Ct. 1934, 1943-44, 114 L.Ed.2d 547 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). “Therefore, regardless of whether the constitutional violation occurred, the officer should prevail if the right asserted by the plaintiff was not ‘clearly established’ or the officer could have reasonably believed that his particular conduct was lawful.” Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991) (emphasis supplied). Furthermore, “[t]he entitlement is an immunity from suit rather than a mere defense to liability; ... it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985). The qualified immunity test requires a two-part analysis: “(1) Was the law governing the official’s conduct clearly established? (2) Under that law, could a reasonable officer have believed the conduct was lawful?” Act Up!, 988 F.2d at 871; see also Tribble v." }, { "docid": "14989100", "title": "", "text": "3038, 97 L.Ed.2d 523 (1987). Courts have accommodated this concern “by generally providing government officials performing discretionary functions with a ‘qualified immunity,’ shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the lights they are alleged to have violated.” Id.; see Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). “One of the purposes of [qualified] immunity ... is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.” Siegert v. Gilley, 500 U.S. 226, 237, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Doctrinally speaking, qualified immunity “is an immunity from suit rather than a mere defense to liability; and like absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (emphasis in original); see Siegert, 500 U.S. at 226, 111 S.Ct. at 1794. As the Supreme Court has explained, “qualified immunity” affords “protection to all but the plainly incompetent or those who knowingly violate the law.” Malley, 475 U.S. at 341, 106 S.Ct.. at 1096. The rule supports “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” In Re City of Philadelphia Litig., 49 F.3d 945, 960 (3d Cir.1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982) (citations omitted)). In order to defeat an assertion of qualified immunity, a plaintiff must allege that the official violated a “clearly estab lished” right. Anderson, 483 U.S. at 635, 107 S.Ct. at 3038. A plaintiff does not fulfill this requirement simply by alleging the defendant violated some constitutional provision. Rather, “the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense.” Anderson, 483 U.S. at 640, 107 S.Ct. at 3039 (emphasis added). As this Court explained, “clearly established" }, { "docid": "14038777", "title": "", "text": "protects public officials from liability under § 1983 so long 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, 816, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The doctrine thus 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). Because “[qualified immunity serves not only as a defense to liability but also as ‘an entitlement not to stand trial or face the other burdens of litigation,’” Cox v. Hainey, 391 F.3d 25, 29 (1st Cir.2004) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)), “the applicability vel non of the qualified immunity doctrine should be determined at the earliest practicable stage in the case.” Id. The qualified immunity analysis consists of three inquiries: “(i) whether the plaintiffs allegations, if true, establish a constitutional violation; (ii) whether the constitutional right at issue was clearly established at the time of the putative violation; and (iii) whether a reasonable officer, situated similarly to the defendant, would have understood the challenged act or omission to contravene the discerned constitutional right.” Limone v. Condon, 372 F.3d 39, 44 (1st Cir.2004). “Under ordinary circumstances, the development of the doctrine of qualified immunity is best served by approaching these inquiries” in sequence. Cox, 391 F.3d at 30. On summary judgment, then, the threshold question is whether “all the uncontested facts and any contested facts looked at in the plaintiffs favor” allege a constitutional violation. Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 62 (1st Cir.2004). A. Deprivation of a Constitutional Right 1. Issuance of a Valid Arrest Warrant Burke maintains that the arresting officers never produced a warrant when they arrested him at his home on the afternoon of December 10 and that the copy of the warrant they have since produced is invalid because it is unsigned and unaccompanied by an affidavit or statement of facts in support of probable cause. It has been" }, { "docid": "2783135", "title": "", "text": "pleading and proving qualified immunity. Losch v. Borough of Parkesburg, 736 F.2d 903, 909 (3d Cir.1984)(eiting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 (1982)). “[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, 451 U.S. at 818, 102 S.Ct. at 2738; see also Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986)(holding that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”); Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985)(hold-ing that officials are immune unless “the law clearly proscribed the actions” they took). “[Wjhether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action,” Creighton, 483 U.S. at 640, 107 S.Ct. at 3038 (1987)(quoting Harlow, 457 U.S. at 819, 102 S.Ct. at 2739), based on the information the official actually possessed at the time. Id., 102 S.Ct. at 2740. As we summarized this jurisprudence in Wilkinson v. Bensalem Township, 822 F.Supp. 1154 (E.D.Pa.1993): When analyzing a claim of qualified immunity, we must “first ... identify the specific constitutional right allegedly violated, then ... inquire whether at the time of the alleged violation it was clearly established, then further ... inquire whether a reasonable person in the official’s position would have known that his conduct would violate that right.” Collinson, 895 F.2d at 998 (Phillips, J., concurring). The first two prongs of this inquiry are pure questions of law for the court to decide. See id. (citing Anderson v. Creighton, 483 U.S. 635, 637-43, 107 S.Ct. 3034, 3038-40, 97 L.Ed.2d 523 (1987)); Mitchell v. Forsyth, 472 U.S. 511, 535 n. 12, 105 S.Ct. 2806, 2820 n. 12, 86 L.Ed.2d 411 (1985). The third prong is an application of Harlow’s objective standard, which sometimes requires courts to make factual determinations concerning a" }, { "docid": "12244010", "title": "", "text": "This objective “reasonableness” standard affords qualified immunity protection to “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). The Supreme Court created the doctrine of qualified immunity to “avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court pointed out that the entitlement of qualified immunity “is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. Thus, Harlow and its progeny share the common goal of “keep[ing] the public official out of the courtroom, free to exercise discretionary duties under clearly established law without the constant threat of lawsuits.” Ansley v. Heinrich, 925 F.2d 1339, 1347 (11th Cir.1991). In applying the objective reasonableness standard announced in Harlow, this court must \"conduct its review through the eyes of an objective, reasonable government official.” Nicholson v. Georgia Dept, of Human Resources, 918 F.2d 145, 147 (11th Cir.1990). We held in Nicholson that the relevant inquiry is “could a reasonable official have believed his or her action to be lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred.” Nicholson, 918 F.2d at 147. The objective reasonableness standard is to be applied through the use of the following two-part analysis: (1) The defendant public official must first prove that ‘he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.’ (2) Once the defendant public official satisfies his burden of moving forth with the evidence, the burden shifts to the plaintiff to show lack of good faith on the defendant’s part. This burden is met by proof demonstrating that the defendant public official’s actions ‘violated clearly established constitutional" }, { "docid": "14038776", "title": "", "text": "probable cause, and (3) his arrest on the basis of a misleading warrant application submitted with intentional or reckless disregard for the truth. The defendants all insist that Burke suffered no constitutional deprivation. The individual police defendants further argue that even if the record supports Burke’s allegations that he suffered a violation of a Fourth Amendment right, they are entitled to qualified immunity against suit for damages in their individual capacities for any acts or omissions that caused such a deprivation. The doctrine of qualified immunity aims to balance [the] desire to compensate those whose rights are infringed by state actors with an equally compelling desire to shield public servants from undue interference with the performance of their duties and from threats of liability which, though unfounded, may nevertheless be unbearably disruptive. Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir.1992). Because exposure to civil rights suits may result in “distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service,” the doc trine of qualified immunity protects public officials from liability under § 1983 so long 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, 816, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The doctrine thus 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). Because “[qualified immunity serves not only as a defense to liability but also as ‘an entitlement not to stand trial or face the other burdens of litigation,’” Cox v. Hainey, 391 F.3d 25, 29 (1st Cir.2004) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)), “the applicability vel non of the qualified immunity doctrine should be determined at the earliest practicable stage in the case.” Id. The qualified immunity analysis consists of three inquiries: “(i) whether the plaintiffs allegations, if true, establish a constitutional violation; (ii) whether the constitutional right at issue was clearly" }, { "docid": "13655414", "title": "", "text": "e.g., Anderson v. Creighton, 483 U.S. 635, 638,107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). To lose the protections of qualified immunity, the federal officials must have violated clearly established law. See Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985). Moreover, 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, 1096, 89 L.Ed.2d 271 (1986). If federal officials should have known that their conduct would give rise to personal liability for breaching plaintiffs’ constitutional rights, then the officials lose the protections of qualified immunity. See Anderson, 483 U.S. at 641, 107 S.Ct. at 3040. Plaintiffs’ allegations in the complaint should be used to determine the appropriateness of defendants’ qualified immunity defense. See Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. In the case at bar, plaintiffs complained that defendants violated their constitutional rights by demanding and ordering AM General to fire them. The district court found, however, that plaintiffs’ allegations were unsubstantiated: The evidence which has been gleaned from this record suggests only that the Government agency — that is, the representatives from the Defense Logistics Agency — informed the Plaintiffs’ employer that they had undesirable persons working for them and, taking the evidence in the light most favorable to the Plaintiffs, that there was a hint that they should be fired. There is a question as to whether this allegation, if taken as true, constitutes a constitutional tort.... In looking at the complaint, [it is not clear] that the Government officials violated any clearly established law when they allegedly informed a Government contractor that its employee had [an unsavory] past. Joint Appendix at 24-25 (quoting Onderik v. Defense Logistics Agency, C.A. No. 87-CV-70416-DT (E.D.Mich. July 12, 1988) (ruling on motion to dismiss)). Although it is quite possible that defendant Condon and General Morgan's conduct caused AM General to discharge the plaintiffs, there is no evidence to indicate that the defendants violated a federal law or knowingly committed a constitutional tort. Acting as counsel to the" }, { "docid": "6048085", "title": "", "text": "reasonable person would have known.” Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 737 (7th Cir.1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818,102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). Qualified immunity is a judicially created doctrine in tended to balance the citizen’s statutory or constitutional right against the reality that few “persons will enter public service if such service entails the risk of personal liability for one’s official decision.” Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). As such, the doctrine provides an “immunity from suit rather than a mere defense to liability.” Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (emphasis in original). The availability of qualified immunity “turns on the ‘objective legal reasonableness’ of the actions taken by the defendants.” Hall v. Ryan, 957 F.2d 402, 404 (7th Cir. 1992) (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987)). Moreover, “[ajctions taken by local officials are considered objectively unreasonable only if the right allegedly violated is clearly established in a sufficiently particularized sense at the time of the actions at issue.” Id.; Azeez v. Fairman, 795 F.2d 1296,1301 (7th Cir.1986) (“The right must be sufficiently particularized to put potential defendants on notice that their conduct probably is unlawful.”). Thus qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 415 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). When immunity from suit is sought by invocation of the doctrine of qualified immunity, the plaintiff has the burden of establishing the existence of a clearly established right. Liebenstein v. Crowe, 826 F.Supp. 1174, 1183 (E.D.Wis.1992) (citing Abel v. Miller, 824 F.2d 1522, 1534 (7th Cir.1987)). That burden requires the plaintiff to “offer either a closely analogous case or evidence that the defendants’ conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts.” Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir.1993) (citing Rice v. Burks, 999" }, { "docid": "23216979", "title": "", "text": "the minimum security facility was aware of Schroeder’s reputation as a complainer, but thought that Schroeder only complained through internal channels, filing administrative grievances. Robelido indicated, in essence, that the staff was unpleasantly surprised to discover that Schroeder also complained through external channels, filing complaints and motions with the courts. Complaint at 24-25, ¶¶ 87, 89. Accordingly, we conclude that Schroeder did file an opposing affidavit to defendants’ motion for summary judgment. We now turn to the merits of defendants’ assertion of qualified immunity. B. QUALIFIED IMMUNITY We review de novo the district court’s denial of summary judgment on qualified immunity grounds. Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993); Baker v. Racansky, 887 F.2d 183, 185 (9th Cir.1989). The defense 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).’ The rule of qualified immunity “ ‘provides ample support to all but the plainly incompetent or those who knowingly violate the law.’ ” Burns v. Reed, 500 U.S. 478, 494-95, 111 S.Ct. 1934, 1944, 114 L.Ed.2d 547 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986)). “Therefore, regardless of whether the constitutional violation occurred, the officer should prevail if the right asserted by the plaintiff was not ‘clearly established’ or the officer could have reasonably believed that his particular conduct was lawful.” Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991) (emphasis added). Furthermore, “[t]he entitlement is an immunity from suit rather than a mere defense to liability; ... it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). The qualified immunity test requires a two-part analysis: “(1) Was the law governing the official’s conduct clearly established? (2) Under that law, could a reasonable officer have believed the conduct was lawful?”" }, { "docid": "977110", "title": "", "text": "the court must find that “there is a genuine issue of fact regarding the government offi-. cial’s engaging in conduct violative of the clearly established law.” Id. “Clearly established” means that “[t]he contours of the [violated] right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of the preexisting law the unlawfulness must be apparent. Id. (citations omitted). Under this standard, qualified immunity is available to protect “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). To defeat a qualified immunity defense, the plaintiff bears the burden of showing that the “legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or, ... the law clearly proscribed the actions the defendant took.” Barts v. Joyner, 865 F.2d 1187, 1190 (11th Cir.1989), cert, denied, 493 U.S. 831, 110 S.Ct. 101, 107 L.Ed.2d 65 (1989) 0quoting Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985)). In determining whether the plaintiff meets this burden, the court is guided by the Eleventh Circuit’s direction in Nicholson v. Georgia Dep’t of Human Resources, 918 F.2d 145 (11th Cir.1990): In satisfying this burden, the plaintiff cannot point to sweeping propositions of law and simply posit that those propositions are applicable. Instead, the plaintiff must draw the court’s attention toward a more particularized and fact-specific inquiry. Under this inquiry, the plaintiff need not point to one or more cases that resolved the precise factual issues at issue in his or her case. ‘[Although the standard is fact-specific, it is not one of factual rigidity.’ Rather, the plaintiff need only show that there existed sufficient case law establishing the contours" }, { "docid": "22136531", "title": "", "text": "as to the material facts. [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trials\" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quotation marks and citations omitted). II. Qualified Immunity A. \"Qualified immunity is `an entitlement not to stand trial or face the other burdens of litigation.'\" Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). The principle of qualified immunity serves important practical purposes in our system. It shields government officials from liability for their performance of discretionary actions and offers them the benefit of avoiding costly, time-consuming and, ultimately unsuccessful litigation. See Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.2000). lArhen considering the issue of qualified immunity we must first determine whether-viewed in the light most favorable to the injured party-the facts alleged demonstrate that the officer's conduct violated a constitutional right. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. If so, we must determine whether that right was clearly established. In other words, \"[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.\" Anderson, 483 U.S. at 640, 107 S.Ct. 3034; see Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (noting that a court should determine \"not only the currently applicable law, but whether that law was clearly established at the time an action occurred\"). This inquiry is, in essence, a determination \"whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.\" Saucier, 533 U.S. at 202, 121 S.Ct. 2151; see Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (stating that qualified immunity protects \"all but the plainly incompetent or those who knowingly violate the law\"). If the" } ]

[ { "docid": "21289614", "title": "", "text": "of the casualty herein complained of, were caused by any prior or subsequent injury, disease, sickness, or other condition ? If so: “a. Specify the nature and extent of such information.” Objection sustained, as drawn, but respondent will be required to state whether it contends that any of libelant’s alleged disability is due to any prior or subsequent injury or disease about which information has been given to this respondent, its attorneys or its examining physicians, by libelant or by libelant’s attorneys. “31. Have the Respondents obtained a written report from any expert they propose to call as a witness ? If so: “a. Give the name, address, telephone number, profession or specialty, and office or work address of said expert. “b. Attach a copy of said expert’s written report to the Answers to these Interrogatories.” Objection sustained. May be discussed at pretrial or other preliminary conference, on basis of exchange of information. In accordance with the general practice in this State and District, such matters should be discussed between counsel before the pretrial conference. “32. Have the Respondents consulted or obtained a written report from an expert they do not propose to call as a witness ? If so: “a. Give the name, address, telephone number, profession or specialty, and office or work address of said expert.” Objection sustained. “33. Was any medical examination or treatment given to the Libellant by or at the request of the Respondents ? If the answer to this Interrogatory is in the affirmative: “a. Give the name, address and office telephone of each such physician. “b. Attach a copy of said physician’s report to the answers to these interrogatories.” Objection overruled except as to “b”, which may be renewed at pretrial on basis of exchange of information, or prior thereto under Admiralty Rule 32 for good cause shown. “34. Describe, in detail, the physical appearance and condition of Libellant immediately after the injury was sustained.” Objection sustained.' “35. On what date was the SS Ocean Chief taken out of navigation ?” Objection sustained. “36. List the date or dates on which the weather" } ]

[ { "docid": "11066987", "title": "", "text": "law; both state courts and the federal courts are free to apply their respective procedural rules. Fahey v. United States, S.D.N.Y., 18 F.R.D. 231. 3. The controlling question in this case is whether good cause has been shown. The general rule is that a party is entitled to discover facts, but not opinions of experts engaged and paid by his opponent. In personal injury cases, however, it is difficult to separate the facts from the opinions in medical reports, and-the courts must either adopt a more or less arbitrary rule or let the decision depend upon the facts and circumstances of the particular case. The Maryland state courts have adopted a general rule, No. 410 c 2, but the federal rules leave the matter largely to the discretion of the trial judge. Moore, op. cit., sec. 26.24. It has been the policy of this court to encourage the exchange of medical information, at pretrial or before, but to pei-mit discovery under Rule 34 (or Admiralty Rule 32), for good cause shown. Buining v. The S. S. Transporter, D.Md., 171 F.Supp. 127, 136, and 465, 466; Stone v. Marine Transport Lines, D.Md., 23 F.R.D. 222, 228. Good cause has been shown in this case. (A) Medical attention before an accident is often irrelevant, but in this case the facts disclosed by plaintiff’s deposition and by Dr. Lerner’s report show that the records of the VA hospitals and of the Prince George’s County Hospital relating to the treatment of plaintiff before the accident are likely to be relevant and material themselves or to lead to the discovery of admissible evidence. Rule 26(b); Mel’s Cash Registers v. National Cash Register Co., D. Md., 27 F.R.D. 285. Plaintiff will therefore be required to execute the necessary papers to make those records available to defendant, and the court will issue any order or subpoena which may be necessary under 38 U.S.C.A. § 3301. See Fahey v. United States, S.D.N.Y., 18 F.R.D. 231; Berkheimer v. Pennsylvania R. R. Co., E.D.Pa., 25 F.R.D. 37; Schwartz v. Travelers Insurance Co., S.D.N.Y., 17 F.R.D. 330. (B) With respect to" }, { "docid": "5775090", "title": "", "text": "sought to be discovered has been gathered for plaintiff by third persons under the supervision of plaintiff’s attorneys. Insofar as factual material alone is involved then, the pending motion does not constitute “an attempt to secure the * * * mental impressions contained in the files and the mind of the attorney”. Hickman v. Taylor, supra, 329 U.S. at page 509, 67 S.Ct. at page 392, nor does the supervision or acquisition by plaintiff’s attorneys convert the result into “work product” of a lawyer. Cf. Shields v. Sobelman, D.C. E.D.Pa.1946, 64 F.Supp. 619. Hence no privilege appears to prevent defendants from pursuing the usual purpose of pretrial discovery — to advance the time of acquiring “mutual knowledge of all the relevant facts gathered by both parties”. Hickman v. Taylor, supra, 329 U.S. at page 507, 67 S.Ct. at page’ 692. Turning now to the question of whether “good cause” within the meaning of Rule 34 appears for requiring pre-trial discovery of the factual information under discussion. In G. & P. Amusement Co. v. Regent Theater Co., D.C.N.D.Ohio 1949, 9 F.R.D. 721, 724, Judge Jones observed that: “Good cause is not shown when the mover has the information sought or can obtain the documents or information therein through other methods than the rules of discovery. Conversely, when such information is available only in the documents which are to be produced, at least a partial showing of good cause has been made.” See also: Dellameo v. Great Lakes S. C. Co., D.C.N.D.Ohio 1949, 9 F.R.D. 77. Application of such a test at bar requires consideration of the reasonable probabilities as to what information is ■contained in the documents at issue which would be admissible at the trial, or “appears reasonably calculated to lead to the discovery of admissible evidence”, Fed.Rules Civ.Proc., Rules 26(b), 34, 28 U.S.C.A. at pages 168, 281, and is not available to the moving party otherwise than through discovery proceedings. In the appraisal reports in question one might reasonably expect to find information as to facts not disclosed by public record, relevant to transactions involving property comparable to that" }, { "docid": "19071593", "title": "", "text": "cause.” It needs nothing but diligence to find that there are no subdivisions to Rule 33. Although this Rule, designated “Interrogatories to Parties”, makes no mention of production of records or documents, in the course of interrogatories a request for copies of statements has been permitted to be made. Hickman v. Taylor, 3 Cir., 1945, 153 F.2d 212, 216; but cf. 2 Moore’s Federal Practice (1938), § 34.03. In the instant case, plaintiff is not proceeding by interrogatory, and the requests for statements are not made in connection with any interrogatory. Plaintiff’s statement quoted above and the recitation in the motion that “the defendant has possession, custody and control of said statements and records, which constitute or contain evidence relevant and material to matters involved in this case,” reflect the concept and language of Rule 34. Clearly that is the Rule under which plaintiff was proceeding, and, indeed, that is the only Rule under which the instant motion for production of documents can be maintained. The defendant denies having such statements or -reports as are sought in requests (2), (3), and (5). Accordingly, these are denied, as is customary. It remains to determine whether, under Rule 34, the statements and reports requested in (1), (4), and (6) should be granted. It may be noted that no question of privilege, such as was raised in Hickman v. Taylor, supra, is present here. In applying Rule 34, this Court first adopted the view that statements obtained in preparation for litigation ought not to be subject to discovery before trial, except, of course, upon good cause shown, although reports of employees made in the usual course of business would be ordered to be produced. Stark v. American Dredging Co., D.C.1943, 3 F.R.D. 300; Eiseman v. Pennsylvania R. Co., D.C.1944, 3 F.R.D. 339. This concept has wide recognition. However, in Hickman v. Taylor, D.C.1945, 4 F.R.D. 479, 482, this Court, sitting en banc, adopted the view that “unless, under the circumstances of any particular case, the Court is satisfied that 'the administration of justice will be in some way impeded, discovery will be granted" }, { "docid": "11156350", "title": "", "text": "not merely the relevancy of particular papers. Relevancy has to do with the content of the desired documents. The “good cause” mentioned in the rule has not to do with the content of the documents, but with the reasons for calling upon an opposing party for the production of relevant material. The discovery procedure of the Federal Rules is only concerned with the production or availability of relevant matter. It is not concerned with irrelevant or immaterial matter. When the Rules provide that documents may be ordered to be produced upon a showing of good cause for the production it is implicit that only relevant documents are affected. In addition to the relevancy, good cause for the production should be shown. It has been held that the rule contemplates an exercise of judgment by the court, not a mere automatic granting of a motion, and the moving party must demonstrate a need for the documents sought. Martin v. Capital Transit Co., D.C., Cir., 1948, 170 F.2d 811; Sutherland Paper Co. v. Grant Paper Box Co., D.C.Pa. 1948, 8 F.R.D. 416; Marzo v. Moore-McCormack Lines, D.C., 7 F.R.D. 378; Wild v. Payson, D.C., 7 F.R.D. 495. The fact that the witnesses are in another state is not in itself “good cause” for permitting production. Berger v. Central Vermont Ry., Inc., D.C.Mass., 1948, 8 F.R.D. 419. In Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, the court, while primarily concerned with the relationship of attorney and client, did elaborately consider the availability of the testimony to the moving party and the lack of necessity in granting the discovery. In the present case the names and addresses are given of all persons who have made statements of the facts of the accident. There is no showing that these persons are not readily available to the plaintiff or that any cause exists for the production of the statements obtained by the agents of the defendant. While the evident purpose of the rules requires a liberality of construction as to the “good cause” assigned for the production of documents, yet unless" }, { "docid": "4474188", "title": "", "text": "in preparation for trial, but not retained or specially employed. As an ancillary procedure, a party may on a proper showing require the other party to name experts retained or specially employed, but not those informally consulted. These new provisions of subdivision (b)(4) repudiate the few decisions that have held an expert’s information privileged simply because of his status as an expert, e.g., American Oil Co. v. Pennsylvania Petroleum Products Co., 23 F.R.D. 680, 685-686 (D.R.I.1959). See Louisell, Modem California Discovery 315-316 (1963). They also reject as ill-considered the decisions which have sought to bring expert information within the work-product doctrine. See United States v. McKay, 372 F.2d 174, 176-177 (5th Cir.1967). The provisions adopt a form of the more recently developed doctrine of “unfairness”. See e.g., United States v. 23.76 Acres of Land, 32 F.R.D. 593, 597 (D.Md.1963); Louisell, supra, at 317-318; 4 Moore’s Federal Practice II 26.24 (2d ed. 1966). Thus, if it is contended that the material requested is developed by an expert (1) who has been retained or specially employed in anticipation of litigation or for trial (on this issue the objector has the burden), and (2) who is not expected to be called as a witness, then before discovery can be ordered, it is essential that the court find the exceptional circumstances described in Rule 26(b)(4)(B). III. The limits of discovery and the protection of parties and witnesses against excessive discovery rests in the broad discretion of the judge. This discretion is abused, however, if it becomes clear that the judge has applied an improper standard, or has failed to follow the established legal rules or has based the decision on a record devoid of facts to support that decision. Chrysler Corporation v. Fedders Corporation, 643 F.2d 1229, 1240 (6th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 388, 70 L.Ed.2d 207 (1981). In this case the orders entered by the district court were not responsive to the requirements of Rule 26(b)(3), resulting in a decision having no support in the record. The lower court did not follow the sequential steps called for by the" }, { "docid": "4305010", "title": "", "text": "Other cases, including all the decisions in point from courts of appeals, reject this, and require some special circumstances in addition to relevancy to establish good cause * * * ” Wright, Federal Courts at 337-38. We are of the view that the reconciliation of these conflicting views attempted by Judge McCree in Crowe v. Chesapeake & O. Ry. Co., 29 F.R.D. 148, 150-151 (E.D.Mich. 1961) is an accurate statement of the guiding principle properly applicable. He pointed out: “The difficulty with the relevance-is-good-cause approach is that it interprets a portion of Rule 34 as redundant and thereby violates elementary canons of construction. The main objection to the good-cause-requires-special-circumstances treatment is that it reintroduces the sporting aspect which the Federal Rules were thought to have excised from judicial proceedings. * * * “ * * * Rule 34 is no more or no less restrictive than Rule 26 or 33. In view of the liberal spirit' of the rules, the court should be disposed to grant such discovery as will accomplish full disclosure of facts, eliminate surprise, and promote settlement. What must be shown under the requirements of good cause in Rule 34 are such circumstances as give the court reason to expect that beneficial objectives of pre-trial discovery will be achieved. “If significant countervailing considerations appear, of a sort not unlike those which justify protective orders under Rule 30(b), then indeed a balance of the competing interests must be struck and something ‘special’ must be shown by the movant. Thus in some instances the obligation of showing good cause may be satisfied with ease and in other instances not at all.” Moore’s analysis follows the same lines. He writes: « * * * iphe courts have differed in their conception of what constitutes good cause for discovery of [reports of accidents and statements of witnesses] under Rule 34. The more liberal view is that expressed by Chief Judge Kirkpatrick in DeBruce v. Pennsylvania Railroad Co. [6 F.R.D. 403 (E.D.Pa.1947)], that it should not be necessary for a plaintiff ‘to show more than that the accident' occurred a considerable time," }, { "docid": "16992395", "title": "", "text": "being ordered to testify.” And in an opinion, Judge Frank A. Hooper of the Northern District of Georgia, on October 18th, 1954, in the case of: United States of America v. 7,534.04 Acres of Land, More or Less, D.C.N.D.Ga., 18 F.R.D. 146 said: “The remaining interrogatories in effect seek to obtain information as to the name of the Government’s appraisers, copies of their appraisals, method of appraisals, a breakdown of values, etc. “In a case such as chis, the burden of proof is upon the property owner to prove the value of the land in question. Value of land is primarily a matter of opinion, which no doubt the Government, as well as the property owners, will prove to a large extent by expert witnesses. The land is open to inspection by all parties, no information concerning the same is sought from the Government that is not readily available to the defendants. The information sought therefore, is necessarily information obtained by the Government in preparation of the trial of the case and in the opinion of this court is not obtainable by interrogatories. See Lewis v. United Air Lines Transport Corporation, D.C., 32 F.Supp. 21; General Motors Corp. v. California Research Corp., D.C., 8 F.R.D. 568(3).” After reviewing the authorities, the author of Moore’s Federal Practice says the correct rule is as follows: “The court should not ordinarily permit one party to examine an expert engaged by the adverse party, or to inspect reports prepared by such expert, in the absence of a showing that the facts or the information sought are necessary for the moving party’s preparation for trial and cannot be obtained by the moving party’s independent investigation or research. However, since one of the purposes of the Federal Rules as-stated in Rule 1 is to facilitate the inexpensive determination of causes, the court should have discretion to order discovery upon condition that the moving party pay a reasonable portion of the fees of the expert.” Moore’s Federal Practice, Vol. 4, Par. 26.24, page 1158. The orders of February 14, 1955 denying production of documents and quashing interrogatories" }, { "docid": "2334447", "title": "", "text": "of the present motion. Moreover, plaintiff’s statement is not part of counsel’s work product. Butler v. United States, 226 F.Supp. 341 (W.D.Mo.1964); see 4 Moore, Federal Practice ¶ 26.23, at 145-48. Defendant’s remaining contention presents a more difficult question. Under Rule 34, a trial judge has a wide range of discretion in ruling on discovery motions. Thomas v. Nuss, 353 F.2d 257 (6th Cir. 1965); Benning v. Phelps, 249 F.2d 47 (2d Cir. 1957). As a general rule each motion must be considered in light of the particular circumstances which give rise to the motion or the need for the information contained in the instrument made the subject of the motion. Cf. United States v. National Steel Corp., 26 F.R.D. 603, 605 (S.D.Tex.1960). Rule 34 simply requires that the moving party show “good cause,” by which is meant some necessity or sound reason why the motion should be granted. See generally 2A Barron & Holtzoff § 796, at 415 (Wright ed. 1961). I have given careful consideration to defendant’s brief and the supporting authorities cited therein, for I feel that the issue raised here goes directly to the spirit of how pretrial discovery is to be conducted in this Court. It is my opinion, and I hold here, that good cause exists where a plaintiff shows, without more, that he has given a statement and that the defendant has refused to make a copy available. Under proper circumstances, however, the defendant will be granted upon a timely request a protective order allowing him to take the plaintiff’s deposition before producing the statement. Since the defendant in the instant case has previously taken the plaintiff’s deposition, the present motion will be granted without condition. Defendant relies heavily upon the case of Lester v. Isbrandsten Co., Inc., 10 F.R.D. 38 (S.D.Tex.1950), which supports in most forceful terms defendant’s contention that plaintiff has not demonstrated good cause for production of the statement. In Lester the Court stated: “Obviously, production of a copy of the plaintiff’s own statement, if any, made to the defendants, is not for the purpose of giving the plaintiff any" }, { "docid": "14987413", "title": "", "text": "Even if a document or record sought is otherwise “relevant” for purposes of discovery under Rule 26(b) of the Federal Rules of Civil Procedure, a court must limit discovery thereof if it “is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Fed. R.Civ.P. 26(b)(2)(C). In the case at bar, plaintiff has obtained extensive discovery on her claims from other sources. She has made production requests and taken multiple depositions of defendants’ witnesses, yielding information on the central issues of notice of her claim to defendant insurers and the handling of said claim. Furthermore, as to the specific emails she seeks (i.e., those pertaining to Carter), plaintiff concedes that “Tucker had independently obtained several of these emails after subpoenaing Journal Register Company.” Doe. #57, p. 1. Thus, she acknowledges that alternative means of discovery have already yielded success in this matter. “While courts interpret liberally the discovery provisions of the Federal Rules of Civil Procedure to encourage the free flow of information among litigants, limits do exist.” Travelers Indem. Co. v. Metropolitan Life Ins. Co., 228 F.R.D. 111, 113 (D.Conn.2005). Because plaintiff has engaged in extensive, alternative, duplicative, and likely less burdensome, discovery with respect to defendants and Journal Register, absent a showing that plaintiff either cannot obtain — or in fact has not obtained — ample discovery on the essential elements of her claim, the Court will refrain from ordering yet another broad and costly search of Marsh’s computer records and policies in search of emails which may not exist. D. Marsh is a non-party to the action and would endure significant burden if the proposed inspection were performed Lastly, Marsh is not a party in this case and would be subjected to significant burden and expense in the event of the requested inspection. These are significant factors. Marsh is neither the plaintiff, who has come to court seeking recovery, nor one of the defendant insurers, who are alleged to have engaged in wrongdoing (e.g., unfair claims handling). Despite its non-party status, Marsh has in apparent good" }, { "docid": "11066982", "title": "", "text": "THOMSEN, Chief Judge. Defendant has moved for an order under Rule 34, F.R.Civ.P., 28 U.S.C.A., requiring plaintiff to produce and to permit defendant to inspect and copy certain medical reports and hospital records relating to the examination, care and treatment of plaintiff (A) before the accident involved in this case, and (B) after the accident. Plaintiff objects on the grounds: (1) that Rule 35(b), not Rule 34 controls; (2) that the records are privileged; and (3) that good cause has not been shown. This action was instituted in the Court of Common Pleas of Baltimore City and removed to this district court by defendant on the ground of diversity of citizenship. 28 U.S.C.A. §§ 1332, 1441. The declaration filed in the state court alleges negligence and unseaworthiness, as a result of which on May 11, 1959, plaintiff -was caused to fall into an unguarded opening in a hold of defendant’s vessel, MV Johannes Russ. Plaintiff claims serious permanent injuries to his head, neck, back, body, arms, legs, muscles, tendons, ligaments, aponeuroses, membranes, articular cartilages, joint capsules, joint spaces, fasciae, nerves, sheaths, and cardiovascular system, manifested in persistent post-traumatic headaches, tenderness in the left sub-occipital region, dizzy spells, blurred vision, impaired hearing in the left ear, and impaired functioning of the left foot. On deposition, plaintiff testified that he had received two injuries to his head prior to the incident mentioned in the complaint: an apparent concussion sustained during the war, for which he was treated on various occasions by Veterans’ Administration hospitals, and an automobile accident in 1958, for which he was treated in Prince George’s County Hospital. Plaintiff’s counsel had theretofore given defendant’s counsel a report of Dr. Eli M. Lippman relating to the claim of injury to the left foot, but plaintiff also testified on deposition that he had gone to the Johns Hopkins Hospital in 1960 for an examination of his head and an evaluation of the alleged post-traumatic headaches, impaired hearing, blurred vision, dizzy spells, etc. In April 1961 plaintiff was examined on his own behalf by Dr. Philip F. Lerner, a neuropsychiatrist, and defendant’s counsel" }, { "docid": "11066984", "title": "", "text": "was given a copy of the report. The history given Dr. Lerner included periods of falling, and the report indicated that plaintiff also had been sent by his counsel in 1959 to Dr. Neal I. Aron-son, a neurosurgeon, for evaluation of the same complaints, and that copies of Dr. Aronson’s report and the VA hospital records had been forwarded to and considered by Dr. Lerner. 1. The purpose of Rule 35 is to enable a party for good cause shown to obtain a mental or physical examination of another party. Paragraphs (b) (1) and (2) of Rule 35 deal with the right to the party examined to a copy of the report of the examining physician and the effect of his exercise of that right. Rule 35 does not prevent a plaintiff or a defendant from obtaining an order under Rule 34 requiring the opposite party to produce and to permit the inspection and copying of medical reports and hospital records, unless such reports and records are privileged. See also Rule 26(b). Benning v. Phelps, 2 Cir., 249 F.2d 47; Cox v. Pennsylvania R. R. Co., S.D.N.Y., 9 F.R.D. 517; Currie v. Moore-McCormack Lines, D.Mass., 23 F.R.D. 660; Cassidy v. Pennsylvania R. R. Co., E.D.Pa., 24 F.R.D. 506; Berkheimer v. Pennsylvania R. R. Co., E.D.Pa., 25 F.R.D. 37. Cf. Bohlin v. Brass Rail, S.D.N.Y., 20 F.R.D. 224; Shepherd v. Castle, W.D.Mo., 20 F.R.D. 184, 189; Galloway v. National Dairy Products Co., E.D.Pa., 24 F.R.D. 362; Holbert v. Chase, E.D.S.C., 12 F.R.D. 171. In situations where such reports and records are privileged, Rule 35(b) is usually the only way in which they may be obtained. Sher v. De Haven, D.C.Cir., 91 U.S.App.D.C. 257, 199 F.2d 777, 36 A.L.R.2d 937, cert. den. 345 U.S. 936, 73 S.Ct. 797, 97 L.Ed. 1363. 2. Rule 35 does not imply that there is a medical privilege in all cases. It recognizes that there is a medical privilege in certain jurisdictions, such as the District of Columbia, where the privilege exists by statute. There is no similar statute applicable to the admiralty and maritime jurisdiction or" }, { "docid": "22170598", "title": "", "text": "Court a motion under Rule 34 seeking the production of a number of documents in the defendant’s possession, including the written statements which the defendant had obtained from witnesses. The supporting affidavit stated that most of these statements were taken by the defendant before the plaintiff’s attorney could begin his investigation, that copies of these statements were “not otherwise available,” and that they contained “relevant and material information” needed by the plaintiff to prepare properly for the trial. The District Judge required the production of the written statements of the witnesses. Guilford National Bank of Greensboro v. Southern Ry., 24 F.R.D. 493 (M.D.N.C.1960). His opinion stated that relevancy was the predominant factor constituting good cause and that the defendant had not shown that any prejudice would result from disclosing these statements, particularly since at the pre-trial conference the defendant would have to reveal the nature of the expected testimony. Nevertheless, the defendant persisted in its refusal to disclose the statements, and after a hearing was adjudged in contempt and fined 1250.00. I We think that the showing of good cause required by Rule 34 ******is not made by a demonstration that the desired written statements of witnesses are relevant to the controversy and will aid the moving party in his preparations for trial. The scheme of Part V of the Federal Rules of Civil Procedure, Rules 26-37, establishing the entire available battery of pre-trial discovery devices, indicates that something more than a showing of relevancy is needed to satisfy Rule 34. The discovery devices sanctioned by Part V of the Federal Rules include the taking of oral and written depositions of persons (Rules 26-32), interrogatories to parties (Rule 33), production of documents in the possession of a party (Rule 34), and physical and mental examinations of a party (Rule 35). The scope of permissible discovery through these means is limited in each instance by the provisions of Rules 26 (b), 30(b), and 30(d). Rule 26(b) provides that “unless otherwise ■ ordered by the court as provided by Rule 30 (b) or (d), the deponent may be examined regarding any matter," }, { "docid": "11066983", "title": "", "text": "capsules, joint spaces, fasciae, nerves, sheaths, and cardiovascular system, manifested in persistent post-traumatic headaches, tenderness in the left sub-occipital region, dizzy spells, blurred vision, impaired hearing in the left ear, and impaired functioning of the left foot. On deposition, plaintiff testified that he had received two injuries to his head prior to the incident mentioned in the complaint: an apparent concussion sustained during the war, for which he was treated on various occasions by Veterans’ Administration hospitals, and an automobile accident in 1958, for which he was treated in Prince George’s County Hospital. Plaintiff’s counsel had theretofore given defendant’s counsel a report of Dr. Eli M. Lippman relating to the claim of injury to the left foot, but plaintiff also testified on deposition that he had gone to the Johns Hopkins Hospital in 1960 for an examination of his head and an evaluation of the alleged post-traumatic headaches, impaired hearing, blurred vision, dizzy spells, etc. In April 1961 plaintiff was examined on his own behalf by Dr. Philip F. Lerner, a neuropsychiatrist, and defendant’s counsel was given a copy of the report. The history given Dr. Lerner included periods of falling, and the report indicated that plaintiff also had been sent by his counsel in 1959 to Dr. Neal I. Aron-son, a neurosurgeon, for evaluation of the same complaints, and that copies of Dr. Aronson’s report and the VA hospital records had been forwarded to and considered by Dr. Lerner. 1. The purpose of Rule 35 is to enable a party for good cause shown to obtain a mental or physical examination of another party. Paragraphs (b) (1) and (2) of Rule 35 deal with the right to the party examined to a copy of the report of the examining physician and the effect of his exercise of that right. Rule 35 does not prevent a plaintiff or a defendant from obtaining an order under Rule 34 requiring the opposite party to produce and to permit the inspection and copying of medical reports and hospital records, unless such reports and records are privileged. See also Rule 26(b). Benning v. Phelps," }, { "docid": "11066989", "title": "", "text": "the records and reports after the accident, this court has followed and now adopts as a general policy the rule stated by Judge Aldrich in Currie v. Moore-McCormack Lines, D.Mass., 23 F.R.D. 660, 661, as follows: “(1) If there are any medical consultations or examinations for treatment, the defendant is entitled to a copy of the reports. (2) If there are any medical examinations solely for the purpose of preparation for trial, the defendant is entitled to a statement of any history given the doctor. Beyond that, the defendant is free to make its own examination of the plaintiff, and has no cause to be furnished with the findings or conclusions of plaintiff’s experts. Cf. Roberson v. Graham Corp., D.C.D. Mass., 14 F.R.D. 83. The expense of furnishing copies is to be borne by the defendant.” See also Cassidy v. Pennsylvania R. R. Co., E.D.Pa., 24 F.R.D. 506. So, the records of the Johns Hopkins Hospital are discoverable, and plaintiff will be required to execute the necessary authority to make them available to defendant. The report of Dr. Aronson presents a more difficult problem. Under the circumstances set out above, particularly the broad claims of injury, it seems fair to require plaintiff to make available to defendant the history given and the details of the examination of plaintiff by Dr. Aronson, but not his diagnosis, impression or prognosis. If necessary, the court will review the report and indicate those portions which must be disclosed. Settle order in ten days if a formal order on the motion is desired; otherwise be guided by this opinion. . The Maryland Rule provides: “c. Writings Obtainable. “Except as otherwise provided in Rule 406 (Order to Protect Party and Deponent) , a party may by written interrogatory or by deposition require that an opposing party produce or submit for inspection : * * * * * “2. Report of Expert. “A written report of an expert, whom the opposing party proposes to call as a witness, whether or not such report was obtained by the opposing party in anticipation of trial or in preparation for" }, { "docid": "11066986", "title": "", "text": "to federal courts generally. There is no physician-patient privilege in the State of Maryland. O’Brien v. State, 126 Md. 270, 284, 94 A. 1034. The courts are not agreed whether federal law or state law controls the issue of privilege in various types of cases. Cf. 2 Barron & Holtzoff § 651, p. 320; 4 Moore’s Federal Practice, 2d ed., §§ 26.23(9), 34.15; Palmer v. Fisher, 7 Cir., 228 F.2d 603, cert. den. 351 U.S. 965, 76 S.Ct. 1030, 100 L.Ed. 1485; Scourtes v. Fred W. Albrecht Grocery Co., E.D.Ohio, 15 F.R.D. 55. Professor Moore has concluded that the federal cqurts, “while respecting state statutes on privilege, should be free to give their own interpretation to the concept of privilege”, thus avoiding “the anomaly of different rules in federal and non-federal (diversity) cases”. Op. cit. p. 1152. See also Brookshire v. Pennsylvania R. R. Co., N.D.Ohio, 14 F.R.D. 154. It makes no difference in the case at bar whether the state law or the federal law controls, because there is no absolute privilege under either law; both state courts and the federal courts are free to apply their respective procedural rules. Fahey v. United States, S.D.N.Y., 18 F.R.D. 231. 3. The controlling question in this case is whether good cause has been shown. The general rule is that a party is entitled to discover facts, but not opinions of experts engaged and paid by his opponent. In personal injury cases, however, it is difficult to separate the facts from the opinions in medical reports, and-the courts must either adopt a more or less arbitrary rule or let the decision depend upon the facts and circumstances of the particular case. The Maryland state courts have adopted a general rule, No. 410 c 2, but the federal rules leave the matter largely to the discretion of the trial judge. Moore, op. cit., sec. 26.24. It has been the policy of this court to encourage the exchange of medical information, at pretrial or before, but to pei-mit discovery under Rule 34 (or Admiralty Rule 32), for good cause shown. Buining v. The S." }, { "docid": "22150464", "title": "", "text": "“A distinction should not be drawn between facts with or without the knowledge of the examining party.” 4 Moore’s Federal Practice para. 26.59 at 26-219 (2d Ed. 1974). Consequently, to characterize the issue here as being determined by a lack of “surprise\" distorts the essential problem. The policy which prompted amendment to Rule 26(b)(4) of the Federal Rules of Civil Procedure to allow more liberal discovery of potential expert testimony was not merely for convenience of the court and the parties, but was intended to make the task of the trier of fact more manageable by means of an orderly presentation of complex issues of fact. “Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.” Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947). See generally F.R.Civ.P. 26(b)(4), Advisory Committee Notes to 1970 Amendments. In this case the expert testimony was crucial. As Judge Bartels has well put it: “Realistically speaking, the resolution of the entire case depends upon [medical] and expert testimony and opinion. The necessities of such a case transcend the usual limitations which may otherwise be imposed upon discovery proceedings.” United States v. Nysco Laboratories, Inc., 26 F.R.D. 159, 162 (E.D.N.Y.1960). Weiss v. Chrysler Motors Corp., supra, at, pp. 456-457. [Emphasis supplied]. See also, Coleco Industries, Inc. v. Berman, supra, (evidence of accounting study not disclosed to opposing party in pretrial properly excluded); Voegeli v. Lewis, supra, (expert witness’ change of opinion was not admissible where it was not disclosed in advance of trial); Tabatchnick v. G. D. Searle, supra, (testimony of proposed new expert excluded where opponent was unfairly prejudiced). The critical nature of Dr. Freston’s testimony convinces us that Ford was prejudiced in the presentation of its case. Dr. Freston not only testified that plaintiff’s injuries were caused by the seat belts; he also testified that in his opinion, based on the article he had read, the injuries were caused by a defective seat belt. [App., Vol. II, at pp. 271-274]. A review of the article on which Dr. Freston based his" }, { "docid": "16706293", "title": "", "text": "on and pay off for the voyage in which she was engaged when Plaintiff was injured, and what was the length and terms of the articles?” Objection overruled as to plaintiff and defendant Plyler; sustained as to others. * * * * * * “17. State the complete medical history of Plaintiff of which Defendant has knowledge or information, listing in detail “a. The nature and extent of all substantial injuries, disabilities, infirmities, illnesses, etc. “b. The nature and extent of the examinations and treatments given for the various disorders. “c. The periods of hospitalization and/or incapacitation. “d. The names, addresses, titles and telephone numbers of all persons, and the names, addresses of all hospitals, clinics or similar institutions where examinations were conducted and treatments rendered, together with the dates thereof. “e. Prom which of the above persons or institutions, medical or hospital reports, records, clinical abstracts, narrative summaries, statements, resumes, etc. have been received, and the dates thereof? “f. Attach authenticated copies of all medical and/or hospital documents mentioned immediately above.” Objection sustained, so far as other injuries are concerned. Ordinarily a party need not divulge facts necessarily known to his opponent where the only purpose of the interrogatory is to prevent effective cross-examination. Objection overruled as to treatment for the injury involved in this suit, except as to “f”. As to “f”, request may be made under Rule 34, F.R.Civ.P., upon showing of good cause or at pretrial on basis of exchange of information. Under the practice in this State and District, such reports are frequently exchanged between counsel before the pretrial conference. “18. State the names, addresses, ‘Z’ numbers, ratings or job classifications, telephone numbers and present whereabouts of all persons who engaged in or were reported to have engaged in fights with or were struck by Huey H. Plyler while he was a member of the crew of the USNS Tonti or while in the employ of the Marine Transport Lines, Inc., or any other shipping company, prior to the casualty complained of herein.” Objection overruled; but defendant need furnish only information which it had prior" }, { "docid": "11066988", "title": "", "text": "S. Transporter, D.Md., 171 F.Supp. 127, 136, and 465, 466; Stone v. Marine Transport Lines, D.Md., 23 F.R.D. 222, 228. Good cause has been shown in this case. (A) Medical attention before an accident is often irrelevant, but in this case the facts disclosed by plaintiff’s deposition and by Dr. Lerner’s report show that the records of the VA hospitals and of the Prince George’s County Hospital relating to the treatment of plaintiff before the accident are likely to be relevant and material themselves or to lead to the discovery of admissible evidence. Rule 26(b); Mel’s Cash Registers v. National Cash Register Co., D. Md., 27 F.R.D. 285. Plaintiff will therefore be required to execute the necessary papers to make those records available to defendant, and the court will issue any order or subpoena which may be necessary under 38 U.S.C.A. § 3301. See Fahey v. United States, S.D.N.Y., 18 F.R.D. 231; Berkheimer v. Pennsylvania R. R. Co., E.D.Pa., 25 F.R.D. 37; Schwartz v. Travelers Insurance Co., S.D.N.Y., 17 F.R.D. 330. (B) With respect to the records and reports after the accident, this court has followed and now adopts as a general policy the rule stated by Judge Aldrich in Currie v. Moore-McCormack Lines, D.Mass., 23 F.R.D. 660, 661, as follows: “(1) If there are any medical consultations or examinations for treatment, the defendant is entitled to a copy of the reports. (2) If there are any medical examinations solely for the purpose of preparation for trial, the defendant is entitled to a statement of any history given the doctor. Beyond that, the defendant is free to make its own examination of the plaintiff, and has no cause to be furnished with the findings or conclusions of plaintiff’s experts. Cf. Roberson v. Graham Corp., D.C.D. Mass., 14 F.R.D. 83. The expense of furnishing copies is to be borne by the defendant.” See also Cassidy v. Pennsylvania R. R. Co., E.D.Pa., 24 F.R.D. 506. So, the records of the Johns Hopkins Hospital are discoverable, and plaintiff will be required to execute the necessary authority to make them available to defendant. The" }, { "docid": "7348337", "title": "", "text": "upon the facts and the circumstances of the particular case. Tobin v. Gibe, D.C., 13 F.R.D. 16. In regard to statements made by witnesses to the opposite party it seems to be generally held that good cause for their production is not shown when it appears that the witnesses are known and readily available to the moving party. This entire matter has been reviewed in Scourtes v. Fred Albrecht Grocery Co., D.C., 15 F.R.D. 55, where the court said at page 59: “Where discovery of materials not the ‘work product’ of an attorney is sought, the requirement is one of ‘good cause’ for production under Rule 34. ‘Good cause’ is present where the information is within the exclusive knowledge of an adversary, or where there is inequality of investigative opportunity, or where the adversary has taken the statement of a witness and that witness is hostile or is no longer available to the party seeking discovery. These factors, standing alone or in combination, will justify discovery if the other requirements of Rule 34 have been met. The Rule clearly contemplates that ‘good cause’ shall consist of something greater than a mere showing of relevancy.” Also see Royal Exchange Assur. v. McGrath, D.C., 13 F.R.D. 150. If the court were faced with the motion alone it might be that the plaintiff could prevail in this case. However, the court has also the benefit of an affidavit by Stuart J. Dunnings, Jr., which reads in part as follows : “1. That the affiant paid a friendly visit to the home of Dr. William Harrison whereupon he was introduced to Mr. Raymond Wilson and Mrs. Eula Wilson, whereupon he was requested by Mr. Raymond Wilson and Mrs. Eula Wilson to represent Mrs. Wilson in negotiating a settlement for the damages she sustained as the result of the automobile accident; whereupon on the 10th day of November, 1953, I wrote a letter to the driver of the other vehicle informing him that I had been so retained. “2. I was informed that he and his wife desired to retain my services as attorney to" }, { "docid": "22814668", "title": "", "text": "Alltmont v. United States, 3d Cir. 1950, 177 F.2d 971. Thus “good cause” requires something more than relevance and something less than the demonstration required to overcome the work product immunity. Beyond these principles, however, the precise meaning of good cause is unsettled and has been the subject of sharp controversy, particularly with regard to witness statements secured in preparation for trial. There is a tendency on the part of many courts to require a strong showing of “special circumstances” which justify production. A less rigid approach, however, seems desirable. As a district court has stated: The main objection to the good-eauserequires-special-circumstances treatment is that it reintroduces the sporting aspect which the Federal Rules were thought to have excised from judicial proceedings * * * In view of the liberal spirit of the rules, the court should be disposed to grant such discovery as will accomplish full disclosure of the facts, eliminate surprise, and promote settlement. What must be shown under the requirement of good cause in Rule 34 are such circumstances as give the court reason to expect that the beneficial objectives of pre-trial discovery will be achieved. Crowe v. Chesapeake & Ohio Ry. Co., E.D. Mich. 1961, 29 F.R.D. 148, 150-151; accord Wright, Federal Courts § 87, at 338. In the case before us, appellees sought and obtained an order compelling production of the statements of the train crew taken shortly after the occurrence of the accident by appellant’s claim agent. There can be no doubt that information concerning the circumstances of the accident from those closely involved is important, even essential to the proper preparation of appellees’ case, especially since appellees’ decedents were killed instantly and cannot provide an account of the facts. The issue, however, is whether appellees need the written statements in the preparation of their case, or conversely, whether the desired information can be secured from the witnesses themselves through interviews or depositions. 4 Moore’s Federal Practice ft 3408, at 2482-83. The fact that the statements are in the exclusive control of the railroad would seem unimportant if the substance of the statements can" } ]

[ { "docid": "18894852", "title": "", "text": "determine whether ITC’s conclusions are supported by the evidence on the record as a whole. SSIH Equip. S.A. v. United States Int’l. Trade Comm’n., 718 F.2d 365, 382 (Fed. Cir. 1983) (additional comments of Circuit Judge Nies, quoting from Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 488 (1957)). ITC may not rely upon isolated tidbits of data which suggest a result contrary to the clear weight of the evidence. In this case, the reasons presented by a majority of the commissioners, without further elaboration, cannot reasonably be said to support the result reached. In its discussion of import volume, ITC focused exclusively on the level of market penetration achieved by Argentine imports. ITC’s analysis of -market penetration data consisted solely of the statement that levels of market penetration remained low and stable. Without discussing the significance of this trend or its relationship to other facts uncovered in the investigation, ITC then stated its bald conclusion that the U.S. industry had not been materially in jured by reason of Argentine imports. The court has noted that \"Congress has not only directed ITC to state its determinations but has also required the agency to explain those determinations * * SCM Corporation v. United States, 2 CIT 1, 3, 519 F. Supp. 911, 913 (1981) (emphasis in original) (quoting SCM Corporation v. United States, 84 Cust. Ct. 227, 242, 487 F. Supp. 96, 108 (1980)). In this case, ITC has failed to articulate any rational connection between low levels of market penetration by Argentine imports and its final negative determination. Under these circumstances, a remand is the proper remedy. See 2 CIT at 4, 519 F. Supp. at 913. Congress, this court, and ITC itself have repeatedly recognized that it is the significance of a quantity of imports, and not absolute volume alone, that must guide ITC’s analysis under section 1677(7). See Atlantic Sugar, Ltd. v. United States, 2 CIT 18, 23, 519 F. Supp. 916, 921-22 (1981). This view is reflected in the legislative history of the Trade Agreements Act of 1979, in which Congress acknowledged: For one industry, an" } ]

[ { "docid": "4780926", "title": "", "text": "The Commission’s findings on the domestic industry’s condition is virtually identical in both determinations because they are based on an identical record. The Commission’s analysis on the threat of material injury is, however, different in each determination. Discussion In reviewing final negative determinations in antidumping duty investigations, the Court will hold unlawful those determinations of the Commission found \"to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B) (1982). Judicial review of a Commission determination for substantial evidence is a limited standard of review. American Permac, Inc. v. United States, 831 F.2d 269, 273 (Fed. Cir. 1987), cert. dismissed, 108 S. Ct. 1067 (1988); Matsushita Elec. Indus. Co. v. United States, 3 Fed. Cir. (T) 44, 45, 750 F.2d 927, 936 (1984). Under the substantial evidence standard for review, the Court will affirm the Commission’s findings if they are supported in the record by. such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Federal Trade Comm’n v. Indiana Fed’n of Dentists, 476 U.S. 447, 454 (1986); Surface Technology, Inc. v. United States Int’l Trade Comm’n, 801 F.2d 3 1336, 1340 (1986); Atlantic Sugar, Ltd. v. United States, 2 Fed. Cir. (T) 130, 136, 744 F.2d 1556, 1562 (1984). Substantial evidence is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent the Commission’s findings from being supported by substantial evidence. Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966); Corning Glass Works v. United States Int’l Trade Comm’n, 4 Fed Cir. (T) 118, 123, 799 F.2d 1559, 1566 (1986); Atlantic Sugar, 2 Fed. Cir. (T) at 136, 744 F.2d at 1562. To prevail under the substantial evidence standard, a plaintiff must show either that the Commission has made errors of law or that the Commission’s factual findings are not supported by substantial evidence. It is within the Commission’s discretion to make reasonable interpretations of the evidence and to determine the overall significance of any particular factor or piece of evidence. Maine" }, { "docid": "15072134", "title": "", "text": "Determination. Plaintiff further asserts that Commerce did not follow the Court’s instruction to explain how its use of import prices to value the entire factor of production for steel wire rod promotes accuracy, with reference to the record. Finally, Plaintiff states that verification of ZWG’s steel import prices was required. Commerce reaffirms its contention that it complied with the Court’s instructions in Def.’s Comments in Rebuttal to Comments Respecting the Final Results of Redeter-mination on Remand, Submitted on Behalf of Shakeproof Assembly Components Division of Illinois Tool Works Inc. (“Def.’s Comments”). Commerce states that it properly used import prices for domestically-purchased materials to promote accuracy, and that the agency properly determined that good cause did not exist to verify prices submitted by ZWG. Because the Court finds that Commerce’s conclusions are both reasonable and supported by substantial evidence, the Court affirms the Remand Determination. II. DISCUSSION A. Standard of Review In reviewing a challenge to Commerce’s determination in an antidumping administrative review, the Court is to hold unlawful a determination, finding or conclusion by Commerce that is unsupported by substantial evidence or otherwise not in accordance with law. See 19 U.S.C. § 1516a(b)(l)(B)(i) (1994). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938); accord Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984). “In applying this standard, the court affirms Commerce’s factual determinations so long as they are reasonable and supported by the record as a whole, even if there is some evidence that detracts from the agency’s conclusions.” Olympia Industrial, Inc. v. United States, 22 CIT -, -, 7 F.Supp.2d 997, 1000 (1998) (“Olympia II”) (citing Atlantic Sugar, Ltd. v. United States, 2 Fed. Cir. (T) 130, 138, 744 F.2d 1556, 1563 (1984)). To determine whether Commerce has acted in accordance with law the court must ask whether the agency’s actions were reasonable under the terms of the relevant statute. In Shakeproof I, the Court noted that the relevant statute did" }, { "docid": "18894393", "title": "", "text": "Standard for Judicial Review Judicial review of final determinations in antidumping investigations is provided under 19 U.S.C. § 1516a(b)(l)(B) (1982), which states: \"The court shall hold unlawful any determination, finding, or conclusion found * * * to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” \"Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938), quoted in Matsushita Electric Industrial Co. Ltd. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984). It is \"enough [evidence] to justify, if the trail 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.” NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939), and \"something less than the weight of the evidence ... [T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence,” Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966). See Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951); Matsushita Electric Industrial Co. Ltd. v. United States, 750 F.2d 927, 936 (Fed. Cir. 1984) (substantial evidence a \"limited standard of review”). The substantial evidence standard \"frees the reviewing courts of the time-consuming and difficult task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute.” Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966) (footnote omitted). But the Court must consider the record as a whole; evidence on the record which detracts from the substantiality of the evidence relied on by the agency in making its determination must be considered. See Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1563 (Fed. Cir. 1984). With respect to the administration and enforcement of the antidumping laws, our appellate court has said: The Tariff Act of 1930, as amended by" }, { "docid": "6775046", "title": "", "text": "as adequate to support a conclusion.’ ” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (citation omitted), quoted in Matsushita Elec. Indus. Co., Ltd. v. United States, 3 Fed. Cir. (T) 44, 51, 750 F.2d 927, 933 (1984). For purposes of judicial review, the evidence before this Court is limited to the evidence contained in the administrative record. See Neuuieg Fertigung GmbH v. United States, 16 CIT 724, 726, 797 F.Supp. 1020,1022 (1992). The Court must accord substantial weight to the agency’s interpretation of a statute it administers. See American Lamb Co. v. United States, 4 Fed. Cir. (T) 47, 54, 785 F.2d 994, 1001 (1986). While Commerce has discretion in choosing one interpretation over another, “[t]he traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of Congress.” Board of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368, 106 S.Ct. 681, 686, 88 L.Ed.2d 691 (1986), cited in Cerámica Regiomontana, S. A v. United States, 10 CIT 399, 405, 636 F.Supp. 961, 966 (1986) (“[T]his Court will not allow an agency, under the guise of lawful discretion, to contravene or ignore the intent of the legislature or the guiding purpose of the statute”), aff'd, 5 Fed. Cir. (T) 77, 810 F.2d 1137 (1987). The Court is not to substitute its own determination for the agency’s but rather is to determine whether Commerce’s determination is supported by substantial evidence on the record and is otherwise in accordance with law. See, e.g., Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (noting “the possibility of drawing two inconsistent conclusions from the evidence does not permit an administrative agency’s finding from being supported by substantial evidence”); Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. at 465, 95 L.Ed. at 467-68 (reviewing court may not “even as to matters not requiring expertise ... displace the [agency’s] choice between two fairly conflicting views, even though the court would justifiably have made a" }, { "docid": "7709153", "title": "", "text": "v. NLRB, 305 U.S. 197, 229 (1938); Matsushita Elec. Indus. Co., Ltd. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984). This court noted, “[i]n applying this standard, the court affirms [the agency’s] factual determinations so long as they are reasonable and supported by the record as a whole, even if there is some evidence that detracts from the agency’s conclusions.” Olympia Indus., Inc. v. United States, 22 CIT 387, 389, 7 F. Supp.2d 997, 1000 (1998) (citing Atlantic Sugar, Ltd. v. United States, 744 F. 2d 1556, 1563 (Fed. Cir. 1984). The court may not reweigh the evidence or substitute its own judgment for that of the agency. See Granges Metallverken AB v. United States, 13 CIT 471, 474, 716 F. Supp. 17, 21 (1989). Substantial evidence 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.” Id., 13 CIT at 475, 716 F. Supp. at 21(citations omitted). Additionally, absent a showing to the contrary, the agency is presumed to have considered all of the evidence in the record. Nat’l Ass’n of Mirror Mfrs. v. United States, 12 CIT 771, 779, 696 F. Supp. 642, 648 (1988). Thus, “to prevail under the substantial evidence standard, a plaintiff must show either that the Commission has made errors of law or that the Commission’s factual findings are not supported by substantial evidence.” Id., 12 CIT at 774, 696 F. Supp. at 644. IV Discussion Plaintiffs claim that the ITC’s Final Determination is unsupported by substantial evidence and otherwise not in accordance with law. The court will address Plaintiffs’ four principal arguments: (1) that the Commission unlawfully excluded the Kazakh Stockpile from its analysis of material injury or threat thereof; (2) that the Commission wrongly determined that imports of uranium from the Russian Federation, Uzbekistan and Kyrgyzstan were not subject to investigation and therefore not subject to cumulation under. 19 U.S.C. § 1677(7)(C)(iv); (3) that the Commission wrongly determined that Cogema Inc. and Power Resources, Inc. are not" }, { "docid": "5292215", "title": "", "text": "existing Commerce precedent, supported by substantial evidence, and otherwise in accordance with law? 8. (a) Whether Commerce’s refusal to deduct from USP the export taxes paid by Russian producers to the Russian government is in accordance with law? (b) Whether the exchange rate balancing requirement, to which Russian producers were subject, represents an implied export tax that should be deducted from USP? Standard of Review The Court will uphold a Commission determination in an antidump-ing investigation unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law * * *.” 19 U.S.C. § 1516a(b)(l)(B)(i) (1994). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a con clusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951); Matsushita Elec. Indus. Co., Ltd. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984). The court may not substitute its judgment for that of the agency. See Matsushita, 750 F.2d at 936. “[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966) (citations omitted). When Commerce’s interpretation of the antidumping statute is challenged, this court applies the two step analysis set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984): Using the traditional tools of statutory construction the court ascertains whether congressional intent on the disputed issue is clear, and, if clear, the court applies the statute in the manner Congress intended, regardless of the agency’s position. If the statute is ambiguous, the court, rather than interpreting the statute anew and rendering its own interpretation, must defer to an administrative agency’s “permissible construction of the statute,” whether that construction manifests itself in the application of the statute, see, e.g., Daewoo Electronics Co., Ltd. v. International Union of Electronic Elec., Technical, Salaried and Mach. Workers, 6 F.3d 1511, 1516 (Fed. Cir. 1993), cert. denied, 114 S.Ct. 2672 (1994), or in" }, { "docid": "18675102", "title": "", "text": "1382 (1988) aff’d, 7 Fed. Cir. (T) 91, 873 F.2d 1427 (1989)). See also Rhone Poulenc, S.A. v. United States, 8 CIT 47, 50, 592 F. Supp. 1318 (1984). The possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s finding from being supported by substantial evidence. Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966). This standard of review accords deference to an agency’s conclusions. It is not the court’s function to decide that it would have made another decision on the basis of the evidence. Matsushita Elec. Indus. Co. v. United States, 3 Fed. Cir. (T) 44, 54, 750 F.2d 927 (1984). The court will affirm the determination of the Commission when it is reasonable and supported by the record as a whole, even where there is evidence which detracts from the substantiality of the evidence. Atlantic Sugar, Ltd. v. United States, 2 Fed. Cir. (T) 130, 136, 744 F.2d 1556 (1984). Moreover, “if the statute is silent or ambiguous with respect to [a] specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron U.S.A. Inc. v. National Resources Defense Council Inc., 467 U.S. 837, 843 (1984) (footnote omitted). II. Concentration of Imports: In an antidumping duty investigation, the Commission is charged with determining whether: (A) an industry in the United States— (i) is materially injured, or (ii) is threatened with material injury, or (B) the establishment of an industry in the United States is materially retarded, by reason of imports * * *. 19 U.S.C. §§ 1671d(b)(1) (1988) and 1673d(b)(1) (1988). When defining “industry,” 19 U.S.C. § 1677(4)(C) (1988) provides that the Commission may, in appropriate circumstances, employ a regional analysis of the domestic industry. In these cases: the United States, for a particular product market, may be divided into 2 or more markets and the producers within each market may be treated as if they were a separate industry if— (i) the producers within such market sell all or almost all of their production of the like product in" }, { "docid": "7709152", "title": "", "text": "value of uranium imported and sold in the United States during the POI was primarily attributable to forms of uranium that had undergone value-added processing. In its determination, the ITC compared future Kazakh imports to the total value of all domestic sales and non-subject imports of processed uranium, including that already met by pre-existing contracts. By this method, the Commission predicted that Kazakh import prices would increase in the future based on the price trends when the Kazakh suspension agreement was in effect, and would not cause material injury or threat of material injury to the domestic market. III. Standard of Review Plaintiffs ask the court to hold that the Commission’s Final Determination is unlawful. The court must evaluate whether the finding in question is supported by substantial evidence on the record or is otherwise in accordance with law. See 19 U.S.C. § 1516a(b)(l)(B). Substantial evidence is “[mjore than a mere scintilla;” it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. of New York v. NLRB, 305 U.S. 197, 229 (1938); Matsushita Elec. Indus. Co., Ltd. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984). This court noted, “[i]n applying this standard, the court affirms [the agency’s] factual determinations so long as they are reasonable and supported by the record as a whole, even if there is some evidence that detracts from the agency’s conclusions.” Olympia Indus., Inc. v. United States, 22 CIT 387, 389, 7 F. Supp.2d 997, 1000 (1998) (citing Atlantic Sugar, Ltd. v. United States, 744 F. 2d 1556, 1563 (Fed. Cir. 1984). The court may not reweigh the evidence or substitute its own judgment for that of the agency. See Granges Metallverken AB v. United States, 13 CIT 471, 474, 716 F. Supp. 17, 21 (1989). Substantial evidence 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.” Id., 13 CIT at 475, 716 F. Supp. at 21(citations omitted). Additionally, absent" }, { "docid": "15072135", "title": "", "text": "that is unsupported by substantial evidence or otherwise not in accordance with law. See 19 U.S.C. § 1516a(b)(l)(B)(i) (1994). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938); accord Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984). “In applying this standard, the court affirms Commerce’s factual determinations so long as they are reasonable and supported by the record as a whole, even if there is some evidence that detracts from the agency’s conclusions.” Olympia Industrial, Inc. v. United States, 22 CIT -, -, 7 F.Supp.2d 997, 1000 (1998) (“Olympia II”) (citing Atlantic Sugar, Ltd. v. United States, 2 Fed. Cir. (T) 130, 138, 744 F.2d 1556, 1563 (1984)). To determine whether Commerce has acted in accordance with law the court must ask whether the agency’s actions were reasonable under the terms of the relevant statute. In Shakeproof I, the Court noted that the relevant statute did not speak directly to the issue of any particular methodology Commerce must employ to value the factors of production, and that discretion was therefore vested in Commerce to develop the details of its methodology.. 23 CIT at ■ — —, 59 F.Supp.2d at 1357. Thereafter, the Court proceeded to examine whether Commerce acted reasonably pursuant to the second step of the Chevron analysis. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Court reserved judgment on the reasonableness of Commerce’s action, and now reviews Commerce’s Remand Determination for that purpose. In the interim, however, the Supreme Court has revisited the issue of how much deference, and in what circumstances, a reviewing court owes to the actions of an executive agency. In Christensen v. Harris County, — U.S. —, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000), the Supreme Court refused to extend Chevron deference (courts must defer to an agency’s interpretive regulation construing an ambiguous statute) to an opinion letter issued by the" }, { "docid": "18675101", "title": "", "text": "and 45.29 percent weighted-average dumping margins. Gray Portland Cement and Clinker from Japan, 56 Fed. Reg. 21,658 (Dep’t Comm. 1991) (Antidumping Duty Order). Both plaintiffs Mitsubishi Materials Corp. et al. and Onoda Cement, Co., Ltd. filed separate complaints before this court challenging several aspects of the Commission majority’s and Commissioner Rohr’s determinations. Ube Industries, Ltd., however, withdrew as a plaintiff on September 11, 1991. The court consolidated both actions together on November 1, 1991 under Mitsubishi Materials Corp., et al. v. United States, Consolidated Court No. 91-06-00426. Discussion I. Standard of Review: An antidumping determination will be overturned only if it is not supported by substantial evidence on the record or otherwise not in accordance with law. 19 U.S.C. 1516a(b)(1)(B) (1988). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” N.A.R., S.p.A. v. United States, 14 CIT 409, 412, 741 F. Supp. 936, 939 (1990) (quoting Gold Star Co. v. United States, 12 CIT 707, 708-709, 692 F. Supp. 1382 (1988) aff’d, 7 Fed. Cir. (T) 91, 873 F.2d 1427 (1989)). See also Rhone Poulenc, S.A. v. United States, 8 CIT 47, 50, 592 F. Supp. 1318 (1984). The possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s finding from being supported by substantial evidence. Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966). This standard of review accords deference to an agency’s conclusions. It is not the court’s function to decide that it would have made another decision on the basis of the evidence. Matsushita Elec. Indus. Co. v. United States, 3 Fed. Cir. (T) 44, 54, 750 F.2d 927 (1984). The court will affirm the determination of the Commission when it is reasonable and supported by the record as a whole, even where there is evidence which detracts from the substantiality of the evidence. Atlantic Sugar, Ltd. v. United States, 2 Fed. Cir. (T) 130, 136, 744 F.2d 1556 (1984). Moreover, “if the statute is silent or ambiguous with respect to [a] specific issue, the question" }, { "docid": "8437834", "title": "", "text": "Federal Trade Comm’n v. Indiana Fed’n of Dentists, 476 U.S. 447, 454, 106 S.Ct. 2009, 2015, 90 L.Ed.2d 445 (1986); Atlantic Sugar, Ltd. v. United States, 2 Fed.Cir. (T) 130, 136, 744 F.2d 1556, 1562 (1984). The Court must also accord substantial weight to an agency’s interpretation of a statute it administers. American Lamb Co. v. United States, 4 Fed.Cir. (T) 47, 54, 785 F.2d 994, 1001 (1986). An agency’s statutory interpretation need not be the only reasonable interpretation, or the one which the Court views as the most reasonable. ICC Indus. v. United States, 812 F.2d 694, 699 (Fed.Cir. 1987); Consumer Prods. Div., SCM Corp. v. Silver Reed America, 3 Fed.Cir. (T) 83, 90, 753 F.2d 1033, 1039 (1985). However, “[t]he traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of Congress.” Board of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368, 106 S.Ct. 681, 686, 88 L.Ed.2d 691 (1986). Discussion The domestic producers assert that Commerce’s final antidumping determination includes numerous factual and legal errors which had the effect of substantially understating the weighted-average dumping margins for the companies investigated. The domestic producers thus contend that Commerce’s final determination violates the antidumping laws and regulations and is unsupported by substantial evidence on the record. 1. CONSTRUCTED FOREIGN MARKET VALUE CALCULATIONS When Commerce is unable to determine the foreign market value (FMV) of imported merchandise under 19 U.S.C. § 1677b(a)(l)(A) (1982), Congress allows Commerce to construct a FMV to compare to the United States price (USP) and thus determine whether merchandise is being dumped in the United States. 19 U.S.C. § 1677b(a)(2) (1982). Congress has directed that Commerce construct FMV by adding the costs of materials, fabrication or processing, general expenses, profit, and the cost of containers for shipping to the United States. 19 U.S.C. § 1677b(e)(l) (1982 & Supp. III 1985); Timken Co. v. United States, 11 CIT —, 673 F.Supp. 495, 506 (1987). The domestic producers conceded at oral argument that Commerce was correct in using a constructed FMV. However, they challenge" }, { "docid": "4780927", "title": "", "text": "of Dentists, 476 U.S. 447, 454 (1986); Surface Technology, Inc. v. United States Int’l Trade Comm’n, 801 F.2d 3 1336, 1340 (1986); Atlantic Sugar, Ltd. v. United States, 2 Fed. Cir. (T) 130, 136, 744 F.2d 1556, 1562 (1984). Substantial evidence is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent the Commission’s findings from being supported by substantial evidence. Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966); Corning Glass Works v. United States Int’l Trade Comm’n, 4 Fed Cir. (T) 118, 123, 799 F.2d 1559, 1566 (1986); Atlantic Sugar, 2 Fed. Cir. (T) at 136, 744 F.2d at 1562. To prevail under the substantial evidence standard, a plaintiff must show either that the Commission has made errors of law or that the Commission’s factual findings are not supported by substantial evidence. It is within the Commission’s discretion to make reasonable interpretations of the evidence and to determine the overall significance of any particular factor or piece of evidence. Maine 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" }, { "docid": "6775045", "title": "", "text": "to value factors of production. Defendant also maintains Commerce’s decision to use the electricity rates reported by defendant-intervenors was reasonable, supported by substantial evidence and otherwise in accordance with law, because Commerce verified the accuracy of defendant-intervenors’ electricity values. Finally, defendant argues Kerr-MeGee was not denied due process when Commerce used a different surrogate ore in the Final Determination than it had utilized in the Preliminary Determination because KerrMeGee was on notice from the investigation’s outset that the surrogate ore ultimately chosen was one of the potential surrogate ores being considered by Commerce. Defendant additionally asserts Kerr-MeGee’s third claim has already been rejected by this Court in Kerr-MeGee I and additionally in Kerr-McGee Chemical Corp. v. United States, — CIT-, 985 F.Supp. 1162, (1997) (“Kerr-McGee II ”). STANDARD OF REVIEW In reviewing a final determination by Commerce, this Court must sustain the determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B)(i) (1994). Substantial evidence is that which “‘a reasonable mind might accept as adequate to support a conclusion.’ ” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (citation omitted), quoted in Matsushita Elec. Indus. Co., Ltd. v. United States, 3 Fed. Cir. (T) 44, 51, 750 F.2d 927, 933 (1984). For purposes of judicial review, the evidence before this Court is limited to the evidence contained in the administrative record. See Neuuieg Fertigung GmbH v. United States, 16 CIT 724, 726, 797 F.Supp. 1020,1022 (1992). The Court must accord substantial weight to the agency’s interpretation of a statute it administers. See American Lamb Co. v. United States, 4 Fed. Cir. (T) 47, 54, 785 F.2d 994, 1001 (1986). While Commerce has discretion in choosing one interpretation over another, “[t]he traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of Congress.” Board of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368, 106 S.Ct. 681, 686, 88 L.Ed.2d 691 (1986), cited in Cerámica Regiomontana, S." }, { "docid": "18621507", "title": "", "text": "v. United States, 2 Fed. Cir. (T) 130, 134-35, 744 F.2d 1556, 1561 (1984), and the Commission has broad discretion to pursue an investigation in a manner that will provide substantial evidence for its determinations. Negev Phosphates, Ltd. v. United States, 12 CIT 1074, 699 F. Supp. 938, 950-51 (1988); Alberta Pork Producers’ Mktg. Bd. v. United States, 12 CIT 262, 683 F. Supp. 1398, 1402 (1988). Although an agency’s failure to collect pertinent data may constitute an abuse of discretion, Timken Co. v. United States, 10 CIT 86, 97, 630 F. Supp. 1327, 1337-38 (1986), the Court finds that the plaintiffs have not established that the Commission’s determination does not rest upon substantial evidence. B. Lost Sales Plaintiffs also argue that the Commission’s reliance on allegations of lost sales is misplaced. Reliance on lost sales data may be a helpful analytical tool in injury investigations, but with fungible goods, volume rather than anecdotal evidence may be the best indicator of lost sales. Negev Phosphates, 12 CIT at 1092, 699 F. Supp. at 943; USX Corp. v. United States, 11 CIT 82, 655 F. Supp. 487, 491 (1987); Lone Star Steel Co. v. United States, 10 CIT 731, 733-34, 650 F. Supp. 183, 186 (1986). Lost sales data indicate that purchasers especially interested in quality often purchased brass from several countries. One purchaser bought brass from Brazil, Canada, Sweden and West Germany, as well as from domestic suppliers, while another purchased imported brass exclusively from Canada. A third purchaser noted that Korean brass was of very good quality. A fourth producer bought brass from domestic, Swedish, and West German suppliers because quality was its main concern. While plaintiffs may offer an alternative interpretation of the evidence, it has failed to show that the Commission’s determination does not rest upon such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Matsushita Elec. Indus. Co. v. United States, 3 Fed. Cir. (T) 44, 54, 750 F.2d 927, 936 (1984); Negev Phosphates, 12 CIT at 1076, 699 F. Supp. at 942. Conclusion The Court finds that the Commission’s" }, { "docid": "17814437", "title": "", "text": "Fed.Reg. 51,850. NSK and JTEKT now challenge the Final Results of the second sunset review pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii). NSK Compl. ¶¶8-23; NSK and NSK Europe Ltd. Compl. ¶¶ 8-28; JTEKT Compl. ¶¶ 12-31. II. STANDARD OF REVIEW The Court will uphold the ITC’s determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” § 1516a(b)(l)(B)(i). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 217, 59 S.Ct. 206, 83 L.Ed. 126 (1938). In a material injury determination, the ITC should take “into account the entire record, including whatever fairly detracts from the substantiality of the evidence.” Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed.Cir.1984). However, the fact that plaintiffs “can point to evidence of record which detracts from the evidence which supports the Commission’s decision and can hypothesize a reasonable basis for a contrary determination is neither surprising nor persuasive.” Matsushita Elec. Indus. Co., Ltd. v. United States, 750 F.2d 927, 936 (Fed.Cir.1984). “[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). When “the totality of the evidence does not illuminate a black-and-white answer,” it is the role of the ITC as the “expert factfinder” to decide which side is most likely accurate. Nippon Steel Corp. v. United States, 458 F.3d 1345, 1359 (Fed.Cir.2006). Therefore, the court will not “displace” an agency’s “choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Factual determinations of the ITC are “presumed to be correct,” and “[t]he burden of proving otherwise shall rest upon" }, { "docid": "18621489", "title": "", "text": "Motion for Judgment Upon an Agency Record, at 13 (citing R. List 2, Doc. 74). Plaintiffs also argue that while Swedish producers manufactured brass for caskets, the Commission failed to account for the fact that there was no domestic production of this brass sub-product during most of the period of investigation. Id. at 16. Plaintiffs reason that considering plaintiffs’ minimal market penetration ratios * * * and the fact that a significant portion of that small market penetration consists of products that were not produced domestically during [most of] the period of investigation, the lack of fungi-bility between Swedish products, other imports and domestic products is readily apparent (particularly when quality is also considered) and the Commission’s determination that these products are fungible is not supported by substantial evidence of record. Id. It is not the Court’s function to reweigh the evidence, but to decide whether the Commission’s determinations are supported by substantial evidence. 19 U.S.C. § 1516a(b)(l)(B) (1982); Matsushita Elec. Indus. Co. v. United States, 3 Fed. Cir. (T) 44, 54, 750 F.2d 927, 936 (1984); Citrosuco Paulista, S.A. v. United States, 12 CIT 1196, 704 F. Supp. 1075, 1093 (1988). \"Substantial evidence” is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 477 (1951); Consolidated Edision Co. v. National Labor Relations Bd., 305 U.S. 197, 229 (1938). It 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. Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619-20 (1966); Matsushita, 3 Fed. Cir. (T) at 51, 750 F.2d at 933. The substantiality of evidence must also take into account whatever in the record fully detracts from its weight. Universal Camera Corp., 340 U.S. at 477; National Ass’n of Mirror Mfrs. v. United States, 12 CIT 771, 696 F. Supp. 642, 644 (1988). The Commission has previously analyzed competition among imports and domestic products by determining whether there is a" }, { "docid": "18651895", "title": "", "text": "obtained from Commerce and USTR. R. 60 at 1-2. It is not the Court’s function to decide that it would have made another decision on the basis of the evidence. Matsushita Elec. Indus. Co. v. United States, 3 Fed. Cir. (T) 44, 54, 750 F.2d 927, 936 (1984). The Court’s role is to determine whether the Commission’s determination is \"unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B) (1982); Atlantic Sugar, Ltd. v. United States, 2 Fed. Cir. (T) 130, 132, 744 F.2d 1556, 1559 (1984). The Chairman and Vice Chairman’s conclusion that the self-restraint program would prevent surges that threatened material injury to the domestic industry is supported by substantial evidence on the record as a whole and is in accordance with law. 2. Commissioner Lodwick’s determination Unlike the Chairman and Vice Chairman, Commissioner Lodwick placed \"little weight on Taiwan’s unilateral restraint policy.” USITC Pub. 1994 at 94. He noted, however, that Taiwanese producers need export licenses and that the volume of material licensed from September 1986 to April 1987 was below recent shipment sizes to the United States. Id. This observation reflects evidence in the record. Conf. R. 16 at A-10; Conf. R. 20. Because export licenses in dicate the likely level of imports in the near future, these data led the Commissioner to find \"no indication of a real and imminent sustainable increase in the position of Taiwan imports in the U.S. market which would lead to material injury to the domestic industry.” USITC Pub. 1994 at 94. The statute provides that the evidence underlying an affirmative threat must be \"real” and the threatened injury \"imminent.” 19 U.S.C. § 1677(7)(F)(ii) (Supp. IV 1986); see American Spring Wire Corp. v. United States, 8 CIT 20, 28 n.8, 590 F. Supp. 1273, 1281 n.8 (1984), aff’d sub nom. Armco Inc. v. United States, 3 Fed. Cir. (T) 123, 760 F.2d 249 (1985). Accordingly, and for the reasons stated above, Commissioner Lodwick’s determination is supported by the record as a whole and in accordance with law. Conclusion The majority views on" }, { "docid": "8437833", "title": "", "text": "for Kajaria. 51 Fed.Reg. at 9,490. In the final determination and subsequent antidumping duty order, Commerce excluded the results for Kejriwal and Kajaria as having only de minimis margins of dumping. Id.; Antidumping Duty Order; Iron Construction Castings From India, 51 Fed.Reg. 17,221 (May 9, 1986). No antidumping duties were assessed against RSI, Kejriwal or Kajaria. The domestic producers filed an action in this Court to challenge Commerce’s results for RSI, Kejriwal and Kajaria. Complaint a at 4. Scope of Review In reviewing final Commerce determinations in antidumping duty investigations, the Court will hold unlawful those determinations found “to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S. C. § 1516a(b)(l)(B) (1982); Luciano Pisoni Fabbrica Accessori Instrumenti Musicali v. United States, 837 F.2d 465, 467 (Fed. Cir.1988). Under the substantial evidence standard for review of agency determinations, the Court will affirm the agency’s findings if they are supported in the record by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Federal Trade Comm’n v. Indiana Fed’n of Dentists, 476 U.S. 447, 454, 106 S.Ct. 2009, 2015, 90 L.Ed.2d 445 (1986); Atlantic Sugar, Ltd. v. United States, 2 Fed.Cir. (T) 130, 136, 744 F.2d 1556, 1562 (1984). The Court must also accord substantial weight to an agency’s interpretation of a statute it administers. American Lamb Co. v. United States, 4 Fed.Cir. (T) 47, 54, 785 F.2d 994, 1001 (1986). An agency’s statutory interpretation need not be the only reasonable interpretation, or the one which the Court views as the most reasonable. ICC Indus. v. United States, 812 F.2d 694, 699 (Fed.Cir. 1987); Consumer Prods. Div., SCM Corp. v. Silver Reed America, 3 Fed.Cir. (T) 83, 90, 753 F.2d 1033, 1039 (1985). However, “[t]he traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of Congress.” Board of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368, 106 S.Ct. 681, 686, 88 L.Ed.2d 691 (1986). Discussion The domestic producers assert that Commerce’s final antidumping" }, { "docid": "18651894", "title": "", "text": "quota allotment of the firms that exported L-WR and whether those exports exceeded their quota allotments. The record lists nine Taiwanese companies with the largest shares of the fixed quota, of which Yieh Hsing has the fifth largest share. R. 60. Combined, these companies account for over half of the 18,000 short tons allowed under the fixed quota. Id. The record also contains a list, obtained from Commerce’s SSSI file, of Taiwanese companies that had exported L-WR and the amounts in metric tons each exported from January 1986 through March 1987. Conf. R. 20. Although the Commission did not know the identity of every firm that might export L-WR or all the firm allocations under the fixed quota, the Commission did know the amounts of L-WR actually exported, and the maximum quota limits under the self-restraint program. R. 60; Conf. R. 20. Moreover, the Chairman and Vice Chairman found Taiwan is adhering to the quota and would likely extend the program past 1987. USITC Pub. 1994 at 23 n.66. These findings are supported by information obtained from Commerce and USTR. R. 60 at 1-2. It is not the Court’s function to decide that it would have made another decision on the basis of the evidence. Matsushita Elec. Indus. Co. v. United States, 3 Fed. Cir. (T) 44, 54, 750 F.2d 927, 936 (1984). The Court’s role is to determine whether the Commission’s determination is \"unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B) (1982); Atlantic Sugar, Ltd. v. United States, 2 Fed. Cir. (T) 130, 132, 744 F.2d 1556, 1559 (1984). The Chairman and Vice Chairman’s conclusion that the self-restraint program would prevent surges that threatened material injury to the domestic industry is supported by substantial evidence on the record as a whole and is in accordance with law. 2. Commissioner Lodwick’s determination Unlike the Chairman and Vice Chairman, Commissioner Lodwick placed \"little weight on Taiwan’s unilateral restraint policy.” USITC Pub. 1994 at 94. He noted, however, that Taiwanese producers need export licenses and that the volume of material licensed from" }, { "docid": "6070899", "title": "", "text": "Discussion In reviewing final Commerce determinations in antidumping duty investigations, the Court is directed by Congress to hold unlawful those determinations found “to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B) (1982). Under the substantial evidence standard for review of agency determinations, the Court will affirm the agency's findings if they are supported in the record by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Federal Trade Comm’n v. Indiana Fed’n of Dentists, 476 U.S. 447, 106 S.Ct. 2009, 2014, 90 L.Ed.2d 445 (1986); Atlantic Sugar, Ltd. v. United States, 2 Fed.Cir. (T) 130, 136, 744 F.2d 1556, 1562 (1984). The Court “must accord substantial weight to an agency’s interpretation of a statute it administers.” American Lamb Co. v. United States, 785 F.2d 994, 1001 (Fed.Cir.1986) (citing Zenith Radio Corp. v. United States, 437 U.S. 443, 450-51, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1964)). However, “[t]he traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of Congress.” Board of Governors of the Federal Reserve System v. Dimension Financial Corp., 474 U.S. 361, 106 S.Ct. 681, 686, 88 L.Ed.2d 691 (1986). 1. Excise Duty Drawback Plaintiffs claim that Commerce erred in adding excise duty drawback to Serampore’s USP. In its final determination, Commerce declared that it was adding “duty drawback” to USP pursuant to 19 U.S.C. § 1677a(d)(l)(B) (1982), which provides for an upward adjustment to USP for customs duties that are rebated or uncollected by reason of exportation. Subsequent to the determination and upon review of plaintiffs’ arguments and the administrative record, the defendant concluded that: (1) the excise duty on pig iron is a tax and not an import customs duty; (2) the excise duty drawback was in fact deducted from Serampore’s foreign market value and inadvertently added to its USP, thereby negating the adjustment made to Serampore’s foreign market value; and (3) as a rebate" } ]

[ { "docid": "22603615", "title": "", "text": "standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 354 U. S., at 489. If indeed Roth, not Memoirs, stated the applicable law prior to Miller, there would be much to commend the apparent view of the Court of Appeals that Miller did not significantly change the law. But we think the basic premise for this line of reasoning is faulty. When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .” Gregg v. Georgia, 428 U. S. 153, 169 n. 15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Three Justices joined in the controlling opinion in Memoirs. Two others, Mr. Justice Black and Mr. Justice Douglas, concurred on broader grounds in reversing the judgment below. 383 U. S., at 421, 424. They reiterated their well-known position that the First Amendment provides an absolute shield against governmental action aimed at suppressing obscenity. Mr. Justice Stewart also concurred in the judgment, based on his view that only “hardcore pornography” may be suppressed. Id., at 421. See Ginzburg v. United States, 383 U. S. 463, 499 (1966) (Stewart, J., dissenting). The view of the Memoirs plurality therefore constituted the holding of the Court and provided the governing standards. Indeed, every Court of Appeals that considered the question between Memoirs and Miller so read our decisions. Materials were deemed to be constitutionally protected unless the prosecution carried the burden of proving that they were “utterly without redeeming social value,” and otherwise satisfied the stringent Memoirs requirements. Memoirs therefore was the law. Miller did not simply clarify Roth; it marked a significant departure from Memoirs. And there can be little doubt that the third test announced in Miller—whether the work “lacks serious literary, artistic, political, or scientific value”—expanded criminal liability. The Court in Miller expressly observed that the “utterly without redeeming social value” test places on the prosecutor “a burden" } ]

[ { "docid": "12318507", "title": "", "text": "cases that did not satisfy the plurality’s test, and vice versa. Id. For example, if there is a small surface water connection between a wetland and a remote navigable water, the plurality would find jurisdiction, while Justice Kennedy might not. Furthermore, a wetland that lacks a surface connection with other waters, but significantly affects the chemical, physical, and biological integrity of a nearby river would meet Justice Kennedy’s test but not the plurality’s. See id. It is therefore difficult, if not impossible, to identify the “narrowest” approach. Accordingly, the Johnson Court looked to Justice Stevens’s approach in Rapanos and found it to provide “a simple and pragmatic way to assess what grounds would command a majority of the Court.” Id. According to the Johnson Court, following Justice Stevens’s instructions and looking to see if either Rapanos test is satisfied “ensures that lower courts will find jurisdiction in all cases where a majority of the Court would support such a finding.” Id. Therefore, the Courts of Appeals for the First and Eighth Circuits held that federal regulatory jurisdiction can be established over wetlands that meet either the plurality’s or Justice Kennedy’s test from Rapamos. Id. at 66; Bailey, 571 F.3d at 799. We agree with the conclusion of the First Circuit Court of Appeals that neither the plurality’s test nor Justice Kennedy’s can be viewed as relying on narrower grounds than the other, and that, therefore, a strict application of Marks is not a workable framework for determining the governing standard established by Rapanos. We also agree with its conclusion that each of the plurality’s test and Justice Kennedy’s test should be used to determine the Corps’ jurisdiction under the CWA. As we have stated in discussing Marks, our goal in analyzing a fractured Supreme Court decision is to find “a single legal standard ... [that] when properly applied, produce[s] results with which a majority of the Justices in the case articulating the standard would agree.” Planned Parenthood of Southeastern Pa. v. Casey, 947 F.2d 682, 693 (3d Cir.1991), modified on other grounds, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d" }, { "docid": "12318508", "title": "", "text": "regulatory jurisdiction can be established over wetlands that meet either the plurality’s or Justice Kennedy’s test from Rapamos. Id. at 66; Bailey, 571 F.3d at 799. We agree with the conclusion of the First Circuit Court of Appeals that neither the plurality’s test nor Justice Kennedy’s can be viewed as relying on narrower grounds than the other, and that, therefore, a strict application of Marks is not a workable framework for determining the governing standard established by Rapanos. We also agree with its conclusion that each of the plurality’s test and Justice Kennedy’s test should be used to determine the Corps’ jurisdiction under the CWA. As we have stated in discussing Marks, our goal in analyzing a fractured Supreme Court decision is to find “a single legal standard ... [that] when properly applied, produce[s] results with which a majority of the Justices in the case articulating the standard would agree.” Planned Parenthood of Southeastern Pa. v. Casey, 947 F.2d 682, 693 (3d Cir.1991), modified on other grounds, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). To that end, we have looked to the votes of dissenting Justices if they, combined with votes from plurality or concurring opinions, establish a majority view on the relevant issue. See United States v. Richardson, 658 F.3d 333, 340 (3d Cir.2011) (viewing as “persuasive authority” the shared view of a four-Justice dissent and a single-Justice concurrence); Horn v. Thoratec Corp., 376 F.3d 163, 176 & n. 18 (3d Cir.2004) (“Thus, on the state requirement issue, Justice Breyer joined with the four-member dissent to make a majority.”); Student Pub. Interest Research Grp. of N.J., Inc. v. AT & T Bell Labs., 842 F.2d 1436, 1451 (3d Cir.1988) (deriving holding from one Justice concurrence and four dissenting Justices). The Supreme Court has also employed this mode of analysis. In United States v. Jacobsen, 466 U.S. 109, 111, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), the Supreme Court determined that the rule of law established by its prior decision in Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), could be" }, { "docid": "14521627", "title": "", "text": "concurrence, but also of the three Justices in dissent, and is therefore the majority view of the Supreme Court. See Gentala v. City of Tucson, 244 F.3d 1065, 1076 (9th Cir.2001) (en banc) (“We are left ... with a clear holding by a Supreme Court majority that when the government subsidizes religious activity, the fact that it is doing so pursuant to a program that treats religious speech or association coequally with other speech is not, standing alone, determinative in Establishment Clause analysis.”). We are instructed, moreover, that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (internal quotation marks omitted). Like the Sixth Circuit, we conclude that Justice O’Connor’s opinion is narrower than the plurality’s “as it utilizes the standard of Agostini ... rather than creating a new standard centered on neutrality, thereby making its mandates controlling.” Simmons-Harris, 234 F.3d at 957. We thus follow Justice O’Connor’s reasoning on this issue, recognizing that five Justices continue to adhere to the view that the Court’s “decisions provide no precedent for the use of public funds to finance religious activities,” at least where that use does not result solely from the private choice of individual aid recipients. Mitchell, 120 S.Ct. at 2558 (O’Connor, J., concurring in the judgment) (internal quotation marks omitted) (joined by Justice Breyer); see id. at 2572-73, 2582-89 (Souter, J., dissenting) (joined by Justices Stevens and Ginsburg); see also Everson, 330 U.S. at 15-16, 67 S.Ct. 504 (“[N]o tax in any amount, large or small, can be levied to support any religious activities.”). In accordance with this view, we conclude that the neutral administration of the state aid program at issue in this case is an insufficient constitutional counterweight to the direct public funding of religious activities alleged by DeStefano. If the MACC were performing those activities, the" }, { "docid": "8637160", "title": "", "text": "there is proof that a discriminatory purpose has been a motivating factor in the decision, ... judicial deference is no longer justified”). . “If state action does not burden a fundamental Constitutional right or target a suspect class, the 'challenged classification must be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’ ” Doe v. Pennsylvania Bd. of Probation and Parole, 513 F.3d 95, 107 (3d Cir.2008) (quoting Donatelli v. Mitchell, 2 F.3d 508, 513 (3d Cir.1993)). In its Memorandum on Conclusions of Law, the District Court referenced Justice Kennedy’s concurrence in Seattle, in which Justice Kennedy notes that strict scrutiny is unlikely to apply to race conscious measures that do employ racial classifications. The District Court, however, did not determine whether that concurrence is binding under Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), and Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir.1991). In their amicus brief, the NAACP Legal Defense & Educational Fund, Inc., the Lawyers Committee for Civil Rights Under Law, and the American Civil Liberties Union Foundation, amicus curiae, urge this Court to treat Justice Kennedy’s concurrence in Seattle as binding. In Maries, the Supreme Court held that, \"[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.' \" 430 U.S. at 193, 97 S.Ct. 990 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859); see also Casey, 947 F.2d at 693 (noting that Marks stands for the proposition that \"the controlling opinion” in a splintered decision is that of the Justice or Justices who concur on the \"narrowest grounds”), overruled in part on other grounds by Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). In Seattle, the Chief Justice and four other Justices, including Justice Kennedy, agreed that racial classifications in" }, { "docid": "14521626", "title": "", "text": "any danger that the resulting indoctrination could be attributed to the government. But five Justices in Mitchell explicitly disagreed with Justice Thomas’s discussion on this point. See id. at 2556-57 (O’Connor, J., concurring in the judgment); id. at 2581-82 (Souter, J., dissenting). His views in this regard therefore do not stand as binding precedent. See, e.g., Texas v. Brown, 460 U.S. 730, 737, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (holding that the discussion of a contested issue in a plurality opinion is “not a binding precedent” if it “has never been expressly adopted by a majority of this Court”). The prevailing view of the Court on this matter appears to be that expressed by Justice O’Connor, who concurred in the Mitchell result but objected that although “neutrality is important,” more central to the Court’s jurisprudence is the principle that “actual diversion of government aid to religious indoctrination” is constitutionally suspect. Mitchell, 120 S.Ct. at 2556, 2557. Justice O’Connor’s position on this issue garnered the support not only of Justice Breyer, who joined in her concurrence, but also of the three Justices in dissent, and is therefore the majority view of the Supreme Court. See Gentala v. City of Tucson, 244 F.3d 1065, 1076 (9th Cir.2001) (en banc) (“We are left ... with a clear holding by a Supreme Court majority that when the government subsidizes religious activity, the fact that it is doing so pursuant to a program that treats religious speech or association coequally with other speech is not, standing alone, determinative in Establishment Clause analysis.”). We are instructed, moreover, that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (internal quotation marks omitted). Like the Sixth Circuit, we conclude that Justice O’Connor’s opinion is narrower than the plurality’s “as it utilizes the standard of Agostini ... rather" }, { "docid": "4664786", "title": "", "text": "decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”) (emphasis added) (citation and quotation marks omitted); see also Planned Parenthood of Se. Pa. v. Casey, 947 F.2d 682, 693 (3d Cir.1991) (“In a run-of-the-mill case where a majority of the Justices endorse a single legal standard, lower courts simply follow that standard.” (citation omitted)). Moreover, to the extent that Justice O’Connor’s concurrence is attractive, it only elaborates that, in some cases, a fee award might be justified by the presence of other factors, such as a significant legal issue or the accomplishment of some public goal, which elevate the nominal damages beyond a mere “technical” or “de minimis” victory. Id. at 121-22, 113 S.Ct. 566 (O’Connor, J., concurring). And, in some unusual cases, courts have indeed cited these factors in affirming fee awards for nominal damages. See, e.g., Mercer v. Duke Univ., 401 F.3d 199 (4th Cir.2005) (noting that the case involved a question of first impression that had broader implications for all women participating on traditionally male school sports teams); Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119 (1st Cir.2004) (concluding that the plaintiffs’ victory in a political discrimination suit against their municipality was a significant legal conclusion serving an important public purpose). Nevertheless, an award of attorney’s fees remains inappropriate in the ordinary civil rights case where the only damages obtained were nominal. See Pino, 101 F.3d at 239 (“The vast majority of civil rights litigation does not result in groundbreaking conclusions of law....”); Maul, 23 F.3d at 146 (observing that all “Section 1983 claims necessarily involve the violation of a right, privilege or immunity”). Indeed, none of the indicated factors are present in this case. Nothing in the record suggests that Jama’s victory on her RFRA claim was anything but a technical and de minimis victory. Even the District Court was unable to justify awarding fees for Jama’s RFRA claim without borrowing substantially from the general negligence claim." }, { "docid": "8637161", "title": "", "text": "Committee for Civil Rights Under Law, and the American Civil Liberties Union Foundation, amicus curiae, urge this Court to treat Justice Kennedy’s concurrence in Seattle as binding. In Maries, the Supreme Court held that, \"[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.' \" 430 U.S. at 193, 97 S.Ct. 990 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859); see also Casey, 947 F.2d at 693 (noting that Marks stands for the proposition that \"the controlling opinion” in a splintered decision is that of the Justice or Justices who concur on the \"narrowest grounds”), overruled in part on other grounds by Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). In Seattle, the Chief Justice and four other Justices, including Justice Kennedy, agreed that racial classifications in the assignment plans at issue in that case required the application of strict scrutiny and that the plans did not survive strict scrutiny. Seattle, 551 U.S. at 720, 733-35, 127 S.Ct. 2738. These portions of Chief Justice Roberts’s opinion constitute the opinion of the Court and, thus, there is a “single rationale explaining the result [that] enjoys the assent of five Justices.” Neither Maries nor Casey governs the level of deference required by Justice Kennedy’s concurring opinion in Seattle. Justice Kennedy’s proposition that strict scrutiny is \"unlikely” to apply to race conscious measures that do not lead to treatment based on classification does not \"explain[] the result” of Seattle. The result of Seattle was the holding that the two assignment plans at issue employed race-based classifications and failed strict scrutiny, but Justice Kennedy’s proposition pertains to assignment plans that do not require strict scrutiny because they do not employ race-based classifications. The portion of Justice Kennedy’s concurrence discussing race-conscious measures is not binding because it is dicta; it refers to hypothetical facts and is not" }, { "docid": "4664785", "title": "", "text": "however, and turns instead to Justice O’Connor’s concurrence for the proposition that fee awards are occasionally permitted despite an award of only nominal damages. But Justice O’Connor’s concurring opinion — not joined by any other member of the Court — is just that: it is her own explanation of how she herself would like to hold. Farrar, 506 U.S. at 116, 113 S.Ct. 566 (O’Connor, J„ concurring) (“I join the Court’s opinion and concur in its judgment. I write separately only to explain more fully why, in my view, it is appropriate to deny fees in this case.”). Five justices including Justice O’Connor joined the majority opinion in holding that a $1 nominal fee does not usually entitle the plaintiff to § 1988(b) attorney’s fees. There was no plurality for Justice O’Connor’s concurring opinion to join or to bolster, and therefore we do not look to it for the “narrowest grounds” of a splintered decision. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (“When a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”) (emphasis added) (citation and quotation marks omitted); see also Planned Parenthood of Se. Pa. v. Casey, 947 F.2d 682, 693 (3d Cir.1991) (“In a run-of-the-mill case where a majority of the Justices endorse a single legal standard, lower courts simply follow that standard.” (citation omitted)). Moreover, to the extent that Justice O’Connor’s concurrence is attractive, it only elaborates that, in some cases, a fee award might be justified by the presence of other factors, such as a significant legal issue or the accomplishment of some public goal, which elevate the nominal damages beyond a mere “technical” or “de minimis” victory. Id. at 121-22, 113 S.Ct. 566 (O’Connor, J., concurring). And, in some unusual cases, courts have indeed cited these factors in affirming fee awards for nominal damages. See, e.g., Mercer v. Duke Univ., 401 F.3d" }, { "docid": "3783681", "title": "", "text": "n. 15, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). In Planned Parenthood of Southeastern Pa. v. Casey, 947 F.2d 682 (3d Cir.1991), modified on other grounds, — U.S. -, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), we had an opportunity to consider the Marks rule and explain its application in some depth. We wrote: The principle objective of this Marks rule is to promote predictability in the law by ensuring lower court adherence to Supreme Court precedent. This objective requires that, whenever possible, there be a single legal standard for the lower courts to apply in similar cases and that this standard, when properly applied, produces results with which a majority of the Justices in the case articulating the standard agree.... [Wjhere no single rationale “enjoys the assent of five Justices,” the situation becomes more complex, but the controlling principle is the same. Where a Justice or Justices concurring in the judgment in such a case articulates a legal standard which, when applied, will necessarily produce results with which a majority of the Court from that case would agree, that standard is the law of the land. Id. 947 F.2d at 693 (citation omitted) (emphasis added). Applying the rule, in Casey, this Court adopted Justice O’Connor’s “undue burden” standard to analyze abortion restrictions. See id. at 697. In a series of cases, Justice O’Connor had taken the middle, and swing, position between Justices who favored more severe tests such as strict scrutiny to evaluate abortion restrictions and other Justices who had favored the less restrictive rational basis review. But any time a regulation constituted an undue burden, Justice O’Connor and those Justices who favored more severe tests would form a majority to strike down the statute. Any time a regulation did not constitute an undue burden, Justice O’Connor and those Justices who favored rational basis review would form a majority to uphold the statute. Thus, the undue burden test had become the law of the land even before Casey. However, it is not always possible to discover a single standard that legitimately constitutes the narrowest ground" }, { "docid": "23226952", "title": "", "text": "order, Casey I through Casey V. They are: Planned Parenthood of Southeastern Pennsylvania v. Casey, 744 F.Supp. 1323 (E.D.Pa.1990) (\"Casey I”), aff'd in part and rev’d in part, 947 F.2d 682 (3d Cir.1991) (\"Casey II” ), aff' d in part and rev’d in part, - U.S. -, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (\"Casey III” ), on remand, 978 F.2d 74 (3d Cir.1992) (\"Casey IV\"), and on remand, 822 F.Supp. 227 (E.D.Pa.1993) (\"Casey V”). . Relevant provisions of the Pennsylvania Act are reproduced in an appendix to the Supreme Court joint opinion. Casey III,- U.S. at-, 112 S.Ct. at 2833-38. . The Court in Marks stated: When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, \"the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds....” Marks, 430 U.S. at 193, 97 S.Ct. at 993 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 2923 n. 15, 49 L.Ed.2d 859 (1976)) (opinion of Stewart, Powell, and Stevens, JJ.). . The joint opinion of Justices O'Connor, Kennedy and Souter provides the narrowest grounds for the judgments in which various other justices concurred to form majorities on different issues. . Under the rule of Marks, supra note 3, the joint opinion is therefore cited for the holdings of the Court. . The word “temporary” appears in brackets in Cohen because it was substituted for the word \"preliminary,” which occurred in the passage quoted from Charles A. Wright et al., 12 Federal Practice and Procedure § 3922 (1977). . In Carson, injunctive relief was tacitly denied in an order designated as something else, and it therefore fell outside the express terms of § 1292(a)(1). Carson had provided the appellant with a way to appeal the order in the unusual circumstances of that case; as we said, Carson \"is a door opening, not a door closing decision.\" Cohen, 867 F.2d at 1467. . We also noted that in Stringfellow v. Concerned Neighbors in Action," }, { "docid": "3333045", "title": "", "text": "by the Supreme Court often result in some confusion as to which opinion or rationale is binding on the lower federal courts. In an attempt to provide some guidance in such situations, the Supreme Court has instructed that the lower courts should follow the rationale “taken by those Members who concurred in the judgments on the narrowest grounds.” Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion); see also Marks v. United States, 430 U.S. 188, 192-93, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (stating that, “[wjhen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.... ’ ”); Planned Parenthood of Southeastern Pa. v. Casey, 947 F.2d 682, 693 (3d Cir.1991) (discussing in detail the “narrowest ground” principle), modified on other grounds, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). If the “narrowest ground” approach is applied to Lohr, Justice Breyer’s opinion takes on added significance. Whereas Justice Stevens concluded that “ § 360(k) simply was not intended to preempt most, let alone all, general common-law duties enforced by damages actions,” see Lohr, 518 U.S. at 491, 116 S.Ct. 2240, Justice Breyer concluded that “ordinarily, insofar as the [FDA] pre-empts a state requirement embodied in a state statute, rule, regulation, or other administrative action, it would also pre-empt a similar requirement that takes the form of a standard of care or behavior imposed by a state-law tort action.” Id. at 504-05, 116 S.Ct. 2240 (Breyer, J., concurring in part and dissenting in part). Thus, Justice Breyer’s rationale is the more narrow of the two because, although the Lohrs’ claims were not preempted by § 360k(a), he was not prepared to join in Justice Stevens’ sweeping pronouncement that § 360k almost never preempts a state common law claim. Of course, the splintered decision in Lohr is unique because Justice Breyer joined in some parts of Justice" }, { "docid": "8601205", "title": "", "text": "§ 3582(c)(2).” Id. The sentence imposed in Freeman came within this exception. The four dissenting Justices, like Justice Sotomayor, concluded that sentences imposed pursuant to C-type plea agreements are based on the agreement, not on the guidelines. See id. at 2700 (Roberts, C.J., with whom Scalia, Thomas, and Alito, JJ., joined, dissenting). But unlike Justice Sotomayor, the dissenters argued that the imposition of a sentence pursuant to a C-type plea agreement always precluded section 3582(c)(2) relief. Id. at 2700-05. These opinions leave some doubt as to the controlling rule. To allay this doubt, our first recourse is to Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). There, the Supreme Court explained that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Id. at 193, 97 S.Ct. 990 (internal quotation marks omitted). This “narrowest grounds” approach is useful when it can be applied straightforwardly, but it is sometimes unworkable. See, e.g., United States v. Johnson, 467 F.3d 56, 63-64 (1st Cir.2006). The defendant asserts that Freeman is not amenable to the Marks “narrowest grounds” approach. As a default measure, he invites us to apply the plurality’s reasoning. In support, he relies on our decision in Johnson. Johnson cannot bear the weight that the defendant loads upon it. The language upon which the defendant relies — that “Marks is workable ... only when one opinion is a logical subset of other, broader opinions,” id. at 63 (quoting King v. Palmer, 950 F.2d 771, 781 (D.C.Cir.1991) (en banc)) — signifies only that “the narrowest opinion must represent a common denominator of the Court’s reasoning; it must embody a position implicitly approved by at least five Justices who support the judgment.” King, 950 F.2d at 781. Adhering to this standard, Freeman is fertile soil for a Marks analysis. To be sure, Freeman’s plurality and concurrence agree on very little. The plurality looks to" }, { "docid": "12664277", "title": "", "text": "of the Justice concurring in the judgment on the “narrowest grounds” should be regarded as the Court’s holding. Marks, 430 U.S. at 193, 97 S.Ct. at 993 (citation omitted). As the Third Circuit has cogently observed: The principal objective of this Marks rule is to promote predictability in the law by ensuring lower court adherence to Supreme Court precedent. This objective requires that, whenever possible, there be a single legal standard for the lower courts to apply in similar eases and that this standard, when properly applied, produce results with which a majority of the Justices in the ease articulating the standard would agree_ [W]here no single rationale ‘enjoys the assent of five Justices,’ the situation becomes more complex, but the controlling principle is the same. Where a Justice or Justices concurring in the judgment in such a case articulates a legal standard which, when applied, will necessarily produce results with which a majority of the Court from that ease would agree, that standard is the law of the land. Planned Parenthood of Southeastern Pa. v. Casey, 947 F.2d 682, 693 (3d Cir.1991) (citation omitted), aff'd in part and rev’d in part, — U.S. -, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992); see also Lundblad v. Celeste, 874 F.2d 1097, 1101-02 & n. 4 (6th Cir.1989) (following Justice Stewart’s concurring opinion in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)), modified on other grounds, 924 F.2d 627 (1991). Admittedly, the Marks rule is less useful where, as here, no opinion, however narrowly construed, may be said to embody a position that enjoys the support of at least five Justices who concurred in the judgment. Nevertheless, our obligation to follow the Supreme Court’s decision coupled with the fact that Marks remains the Court’s only guidance on how lower courts should comply with this duty leads us to rely upon the rule for instruction in reading the tea leaves of Barnes. Applying the Marks rule, the district court correctly concluded that Justice Souter’s concurring opinion resolved the question before the Supreme Court on the narrowest grounds. Justice" }, { "docid": "3333044", "title": "", "text": "cites to Alexander v. Sandoval, 532 U.S. 275, 285 n. 5, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), for the proposition that the lower federal courts do not give “much precedential weight” to a concurring opinion of the United States Supreme Court, even where the concurring opinion is compatible with the majority opinion. See Dissenting Op. at 184. We disagree, as this principle has no application to this case. Sandoval bears little resemblance to the situation in Lohr. In Sandoval, Justice Scalia merely observed that the opinion of a three-member concurrence in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), was not binding precedent on an issue that the five-member majority in Lau did not reach. In Lohr, by contrast, Justice Breyer cast the so-called “swing vote,” which was crucial to the outcome of the case and without which there could be no majority. Moreover, Justice Breyer did not discuss issues in his concurring opinion that Justice Stevens, writing on behalf of the four-judge plurality, did not reach. Splintered opinions by the Supreme Court often result in some confusion as to which opinion or rationale is binding on the lower federal courts. In an attempt to provide some guidance in such situations, the Supreme Court has instructed that the lower courts should follow the rationale “taken by those Members who concurred in the judgments on the narrowest grounds.” Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion); see also Marks v. United States, 430 U.S. 188, 192-93, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (stating that, “[wjhen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.... ’ ”); Planned Parenthood of Southeastern Pa. v. Casey, 947 F.2d 682, 693 (3d Cir.1991) (discussing in detail the “narrowest ground” principle), modified on other grounds, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)." }, { "docid": "1863240", "title": "", "text": "Harken, 2004 WL 3019467, 2004 Bankr.LEXIS 2062 (Bankr.N.D.Iowa 2004) (same); Baxter v. Berksteiner (In re Berksteiner), 2004 WL 2201300, 2004 Bankr.LEXIS 1576 (Bankr.S.D.Ga.2004). The lack of a legal rationale shared by five Justices leads to the inescapable conclusion that Till does not produce binding precedent. 1. The “narrowest grounds\" test The precedential value of plurality decisions in which no single rationale enjoys the assent of five Justices has been a difficult issue for lower courts. Legal scholars have espoused several methods of determining whether a fractured decision should result in precedent that is binding. See Ken Kimura, Note: A Legitimacy Model for the Interpretation of Plurality Decisions, 77 Cornell L.Rev. 1593 (1992). The only approach approved by the Supreme Court is the “narrowest grounds” approach. “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds ....’” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). The Supreme Court has acknowledged that this test is difficult to apply at times and produces varying results in lower courts. Grutter v. Bollinger, 539 U.S. 306, 325, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003); Nichols v. United States, 511 U.S. 738, 745, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (noting the various interpretations of Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980) applied by the circuits). The Court in both Grut-ter and Nichols decided not to engage in the narrowest grounds analysis since it had “baffled and divided the lower courts that have considered it.” Grutter, 539 U.S. at 325, 123 S.Ct. 2325. However, the Supreme Court does not explicitly abandon the Marks inquiry in these cases and subsequent decisions by lower courts continue to employ the Marks analysis. See, e.g., International Union v. Winters, 385 F.3d 1003 (6th Cir.2004); United States v. Stewart," }, { "docid": "23226951", "title": "", "text": "it only for the question of severability and for routine disposition. However, we read the Court’s opinion to permit a future challenge to the Pennsylvania Act in another case after the Act goes into effect. The fact-bound nature of the new standard — inquiring if the law is a “substantial obstacle,” Casey III, — U.S. at -, 112 S.Ct. at 2830 — suggests that a challenge after enforcement of the Pennsylvania Act might yield a different result on its constitutionality. IV. The Supreme Court’s mandate in Casey and our mandate on remand require the district court “to implement both the letter and spirit of the mandate, taking into account the [Supreme Court’s] opinion and the circumstances it embraces.” Bankers Trust Co., 761 F.2d at 949-50. For the foregoing reasons, we will reverse the district court’s order continuing the injunction and reopening the trial and remand with directions to enter judgment for the Commonwealth. . In this opinion, we refer to five previous opinions in this case. To avoid confusion, we have numbered them in chronological order, Casey I through Casey V. They are: Planned Parenthood of Southeastern Pennsylvania v. Casey, 744 F.Supp. 1323 (E.D.Pa.1990) (\"Casey I”), aff'd in part and rev’d in part, 947 F.2d 682 (3d Cir.1991) (\"Casey II” ), aff' d in part and rev’d in part, - U.S. -, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (\"Casey III” ), on remand, 978 F.2d 74 (3d Cir.1992) (\"Casey IV\"), and on remand, 822 F.Supp. 227 (E.D.Pa.1993) (\"Casey V”). . Relevant provisions of the Pennsylvania Act are reproduced in an appendix to the Supreme Court joint opinion. Casey III,- U.S. at-, 112 S.Ct. at 2833-38. . The Court in Marks stated: When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, \"the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds....” Marks, 430 U.S. at 193, 97 S.Ct. at 993 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 2923" }, { "docid": "3783680", "title": "", "text": "no definitive principles can be clearly drawn.” Id. at 569, 101 S.Ct. at 2924 (Rehnquist, J., dissenting). See generally Linda Novak, Note, The Precedential Value of Supreme Court Plurality Decisions, 80 Colum.L.Rev. 756 (1980) (discussing the difficulties inherent in interpreting plurality opinions). Obviously, the decisions of the Supreme Court are binding on this Court and constitute the law of the land. This statement is deceptively simple, however, because when a Supreme Court decision fails to garner a majority, it is often difficult to determine what standard the Court has adopted. Aware of this difficulty, the Court has provided some guidance, “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds.’ ” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 2923 n. 15, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). In Planned Parenthood of Southeastern Pa. v. Casey, 947 F.2d 682 (3d Cir.1991), modified on other grounds, — U.S. -, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), we had an opportunity to consider the Marks rule and explain its application in some depth. We wrote: The principle objective of this Marks rule is to promote predictability in the law by ensuring lower court adherence to Supreme Court precedent. This objective requires that, whenever possible, there be a single legal standard for the lower courts to apply in similar cases and that this standard, when properly applied, produces results with which a majority of the Justices in the case articulating the standard agree.... [Wjhere no single rationale “enjoys the assent of five Justices,” the situation becomes more complex, but the controlling principle is the same. Where a Justice or Justices concurring in the judgment in such a case articulates a legal standard which, when applied, will necessarily produce results with which a majority" }, { "docid": "784556", "title": "", "text": "First Circuit acknowledged Marks’s, language that the holding of a fractured decision “is the position of the Justices ‘who concurred in the judgments on the narrowest grounds ....’” Id at 65 (quoting Marks, 430 U.S. at 193, 97 S.Ct. at 993). The First Circuit nevertheless cited various post-Marks eases in which, in the First Circuit’s view, the Supreme Court itself had examined not only plurality and concurring opinions, but also dissenting opinions, in order to determine the holding of an earlier, fragmented Supreme Court decision. See id. at 65-66. The First Circuit concluded that its approach was therefore “particularly sound given that the Supreme Court itself has moved away from [rigid application of] the Marks formula.” Id. at 65. For the reasons stated below, we join the Seventh and the Ninth Circuits’ conclusion that Justice Kennedy’s “significant nexus” test provides the governing rule of Rapanos. Marks expressly directs lower courts, including this Court, that “[w]hen a fragmented [Supreme] Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding ... may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks, 430 U.S. at 193, 97 S.Ct. at 993 (emphasis added) (quotation marks and citation omitted); see also United States v. Gonzalez-Lauzan, 437 F.3d 1128, 1136 n. 6 (11th Cir.), cert. denied, — U.S. —, 127 S.Ct. 146, 166 L.Ed.2d 106 (2006). The “narrowest grounds” is understood as the “less far-reaching” common ground. Johnson v. Bd. of Regents, 263 F.3d 1234, 1247 (11th Cir.2001). We simply cannot avoid the command of Marks. We are controlled by the decisions of the Supreme Court. Dissenters, by definition, have not joined the Court’s decision. In our view, Marks does not direct lower courts interpreting fractured Supreme Court decisions to consider the positions of those who dissented. See King v. Palmer, 950 F.2d 771, 783 (D.C.Cir.1991) (en banc) (“[W]e do not think we are free to combine a dissent with a concurrence to form a Marks majority.”). Marks talks about those who “concurred in the judgment[ ],”" }, { "docid": "22945845", "title": "", "text": "common denominator of the Court’s reasoning; it must embody a position implicitly approved by at least five Justices who support the judgment. 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc). The D.C. Circuit reaffirmed this approach in Epps, describing Marks as applicable only when “the concurrence posits a narrow test to which the plurality must necessarily agree as a logical consequence of its own, broader position.” 707 F.3d at 348 (emphasis omitted) (quoting King, 950 F.2d at 782). The second approach looks to results rather than reasoning. It defines the narrowest ground as the rule that “would necessarily produce results with which a majority of the Justices from the controlling case would agree.” See, e.g., Planned Parenthood of Se. Pa. v. Casey, 947 F.2d 682, 694-97 (3d Cir. 1991) (finding that Justice O’Connor’s concurring opinions controlled the fractured decisions in Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), and Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990), because a majority of justices in each case would have agreed with her result), aff'd in part, rev’d in part, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). 2. Our cases interpreting Marks have not been a model of clarity. On one occasion, we cited the “results” language described above. See United States v. Williams, 435 F.3d 1148, 1157 n. 9 (9th Cir. 2006) (explaining that a concurrence is controlling under Marks if it “would affect a narrower range of cases than that of the plurality”). Nonetheless, in Williams and other decisions applying Marks to a fractured Supreme Court decision, we analyzed whether the reasoning of a narrower opinion fit entirely into the circle drawn by a broader opinion in order to derive a rule. Our most recent decision to address Marks explicitly employed the “reasoning” approach. Lair v. Bullock, 697 F.3d 1200 (9th Cir. 2012). In Lair, we approvingly cited King and held that the Marks standard applies only “where one opinion can be meaningfully regarded as narrower than another and can represent a common denominator of" }, { "docid": "18089200", "title": "", "text": "of firearms. Nor is there any evidence in the record to show why people like them remain potentially irresponsible after many years of apparently responsible behavior. Without more, there is not a substantial fit between the continuing disarmament of the Challengers and an important government interest. Thus, § 922(g)(1) is unconstitutional as applied to them. IV. Conclusion When sorting out a fractured decision of the Court, the goal is “to find a single legal standard” that “produce[s] results with which a majority of the [Court] in the case articulating the standard would agree.” United States v. Donovan, 661 F.3d 174, 182 (3d Cir. 2011) (quoting Planned Parenthood of Southeastern Pa. v. Casey, 947 F.2d 682, 693 (3d Cir. 1991), modified on , other grounds, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)). We have at times “looked to the votes of dissenting [judges] if they, combined with votes from plurality or concurring opinions, establish a majority view on the relevant issue.” Id. And. when no single rationale explaining the result enjoys the support of a majority of the Court, its holding “may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion)). Applying those interpretive tools here, the following is the law of our Circuit: (1) the two-step Marzzarella framework controls all Second Amendment challenges, including as-applied challenges to § 922(g)(1); (2) a challenger will satisfy the first step of that framework only if he proves that the law or regulation at issue burdens conduct protected by the Second Amendment; (3) to satisfy step one in the context of an as-applied challenge to § 922(g)(1)', a challenger must prove that he was not previously convicted of a serious crime; (4) evidence of a challenger’s rehabilitation or his likelihood of recidivism is not relevant to the step-one analysis; (5) as the narrowest ground supporting the Court’s judgments for" } ]

[ { "docid": "23500310", "title": "", "text": "burden shifting analysis developed in the context of Title VII discrimination cases and applied a “slightly modified version” to determine whether the employer based its action on the individual’s age. Connors, 160 F.3d at 973; 29 U.S.C. § 623(a)(1).. Under the first step of the three-step analysis, a plaintiff must establish a prima facie case showing that he or she: (1) was a member of a protected class (i.e. he or she was forty years of age . or older); (2) was qualified for the position at issue; (3) suffered an adverse employment action; and (4) was replaced by a sufficiently younger person, raising an inference of age discrimination. Showalter v. University of Pittsburgh Med. Ctr., 190 F.3d 231, 234 (3d Cir.1999); Connors, 160 F.3d at 973-74. Recognizing that the fourth element is inadequate in a reduction in force context, as opposed to demotion or discharge cases, we have held that the fourth element is satisfied by showing that the employer retained a “sufficiently younger” employee. Showalter, 190 F.3d at 235. The District Court also held that to satisfy the fourth element of the prima facie case, the plaintiffs must show that the sufficiently younger person retained was “similarly situated.” None of the cases that the District Court cited, Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), Showalter v. University of Pittsburgh Medical Center, 190 F.3d 231 (3d Cir.1999), and Simpson v. Kay Jewelers, Division of Sterling, Inc., 142 F.3d 639 (3d Cir.1998), explicitly holds that a plaintiff, in a RIF age discrimination case, must demonstrate, as part of his or her prima facie case, that “the defendant retained someone who was similarly situated.” Before proceeding to the plaintiffs’ claim of error here, we must therefore determine whether the District Court erred in imposing this requirement as part of the prima facie case. Relying on Earley v. Champion International Corp., 907 F.2d 1077 (11th Cir.1990) and Skalka v. Fernald Environmental Restoration Management, 178 F.3d 414 (6th Cir.1999), the District Court reasoned that because ADEA is not a bumping statute, the plaintiffs must" } ]

[ { "docid": "23500311", "title": "", "text": "held that to satisfy the fourth element of the prima facie case, the plaintiffs must show that the sufficiently younger person retained was “similarly situated.” None of the cases that the District Court cited, Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), Showalter v. University of Pittsburgh Medical Center, 190 F.3d 231 (3d Cir.1999), and Simpson v. Kay Jewelers, Division of Sterling, Inc., 142 F.3d 639 (3d Cir.1998), explicitly holds that a plaintiff, in a RIF age discrimination case, must demonstrate, as part of his or her prima facie case, that “the defendant retained someone who was similarly situated.” Before proceeding to the plaintiffs’ claim of error here, we must therefore determine whether the District Court erred in imposing this requirement as part of the prima facie case. Relying on Earley v. Champion International Corp., 907 F.2d 1077 (11th Cir.1990) and Skalka v. Fernald Environmental Restoration Management, 178 F.3d 414 (6th Cir.1999), the District Court reasoned that because ADEA is not a bumping statute, the plaintiffs must also show that the employer retained a similarly situated individual. In Earley, the United States Court of Appeals for the Eleventh Circuit stated that ADEA does not require an employer to discharge a younger employee so that an employee in the ADEA protected class can be retained. 907 F.2d at 1083. Likewise, the United States Court of Appeals for the Sixth Circuit observed in Skalka that a “plaintiff cannot prevail merely by pointing to other positions for which she was qualified and claim[ ] that the employer should have allowed her to ‘bump’ the occupant of that position.” 178 F.3d at 421. Because ADEA is not a bumping statute, as the plaintiffs concede, the plaintiffs must show that the employer retained a similarly situated employee. Were we to hold otherwise, we would be construing ADEA as guaranteeing a protected employee a job at the expense of a sufficiently younger employee. Thus, to present a prima facie case raising an inference of age discrimination in a reduction in force situation, the plaintiff must show, as part" }, { "docid": "13724791", "title": "", "text": "it seeks to rely to create a genuine issue of material fact. Ill Under the ADEA it is unlawful for an employer to discharge or fail to hire any individual 40 years of age and older or other: wise discriminate against that person with respect to compensation, terms, conditions, or privileges of employment “because of such individual’s age.” 29 U.S.C. § 623(a). Under Sixth Circuit precedent in reduction-in-force cases, an employer can violate the ADEA when it prefers a younger employee, even if that younger employee is within the protected class of workers aged 40 and over. Barnes v. GenCorp Inc., 896 F.2d 1457, 1466 (6th Cir.), cert. denied, 498 U.S. 878, 111 S.Ct. 211, 112 L.Ed.2d 171 (1990). Here, the plaintiff gives no direct evidence of age discrimination. Having no direct evidence of discrimination, the plaintiff must make the showing described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1180 (6th Cir.1983) (courts should allocate burden of proof in ADEA case according to McDonnell Douglas-Burdine analysis Supreme Court adopted for Title VII cases). In Kline v. Tennessee Valley Auth., 128 F.3d 337 (6th Cir.1997), the Sixth Circuit described the showing required under McDonnell Douglas: When a plaintiff attempts to establish its case using the McDonnell Douglas-Bur-dine paradigm, the evidence which establishes the prima facie case is extremely important. In order to prove a prima facie case of discrimination, a plaintiff must show: 1) that he is a member of a protected group, 2) that he was subject to an adverse employment decision, 3) that he was qualified for the position, and 4) that he was replaced by a person outside of the protected class. Kline, 128 F.3d at 349 (citations omitted). The McDonnell Douglas framework consists of three stages. At the first stage, the plaintiff must establish a prima facie case that the employer discriminated against him. Second, the employer can produce evidence of a legitimate, nondiseriminatory reason for its action. Finally, the plaintiff attempts to discredit the employer by proving that" }, { "docid": "23512034", "title": "", "text": "Paper Magic’s motion, and dismissed Duffy’s ADA and WARN claims. The District Court concluded that Duffy failed to state a claim under the ADA since merely being overweight is not a disabling impairment under the ADA. The court dismissed Duffy’s WARN claim because she failed to allege a “plant closing” or “mass layoff’ triggering the statute’s notice obligation. Discovery closed and Paper Magic moved for summary judgment on Duffy’s ADEA claim, her only remaining claim. The District Court concluded that Duffy failed to demonstrate that she was constructively discharged or otherwise suffered an adverse employment action within the purview of the ADEA and entered summary judgment in favor of Paper Magic. Duffy filed a notice of appeal, challenging only the entry of summary judgment in favor of Paper Magic on her claim of age discrimination. We exercise plenary review the District Court’s decision to grant summary judgment. See Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir.1992). II. The ADEA prohibits employers from discriminating against individuals in hiring, discharge, compensation, term, conditions, or privileges of employment on the basis of their age. See 29 U.S.C. § 623(a)(1). Age discrimination may be established by direct or indirect evidence. See Connors v. Chrysler Fin. Corp., 160 F.3d 971, 972 (3d Cir.1998). When evaluating ADEA discrimination claims based on indirect evidence, a plaintiff may establish a prima facie case of age discrimination under the ADEA by demonstrating that she: (1) was a member of a protected class, i.e., that she was over forty, (2) is qualified for the position, (3) suffered an adverse employment decision, (4) and was ultimately replaced by a person sufficiently younger to permit an inference of age discrimination. See id. at 973. To survive a motion for summary judgment, the evidence must be “ ‘sufficient to convince a reasonable factfinder to find all of the elements of [the] prima facie case.’ ” Id. (quoting Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.1997) (en banc)). Here, the District Court found that Duffy had failed to show a prima facie case because she did not" }, { "docid": "15547167", "title": "", "text": "attorney deposed Maloney. The night before Malo-ney’s deposition, defendant’s counsel (who had gone to high school with Maloney’s ex-husband) had pizza at Maloney’s home. OPINION A. Age Discrimination Claim The Age Discrimination in Employment Act makes it unlawful for an employer “to fail or refuse to hire or discharge any individual or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). This protection extends to employees who are between 40 and 70 years old. See 29 U.S.C. § 631(a). To succeed on an ADEA claim, a plaintiff must show that he would not have been terminated “but for” his employer’s intentional age-based discrimination. See Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 396 (7th Cir.1997); A plaintiff may prove age discrimination by either presenting direct evidence or setting forth a prima facie ease under the McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), burden-shifting framework. Chiaramonte 129 F.3d at 396; Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (noting that McDonnell Douglas framework applies in ADEA cases when parties do not dispute it). Under either the direct or indirect method, summary judgment is inappropriate if plaintiff offers evidence from which an inference of discrimination may be drawn. See Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir.1999). To make out a prima facie case in a reduction-in-force context, plaintiff must show the following four McDonnell Douglas elements: (1) he was in the protected age class (40 to 70 years of age); (2) he was meeting his employer’s legitimate expectations; (3) he was discharged; and (4) and persons not in the protected class were treated more favorably. See Cianci v. Pettibone Corp., 152 F.3d 723, 728 (7th Cir.1998); Bellaver v. Quanex Corp., 200 F.3d 485, 493-94 (7th Cir.2000). With respect to the fourth prong, “an inference [of age discrimination] cannot be drawn from the replacement of one worker with another worker insignificantly younger.” O’Connor v. Consolidated Coin Caterers Corp., 517" }, { "docid": "739573", "title": "", "text": "L.Ed.2d 207 (1981); Massarsky v. General Motors Corp., 706 F.2d 111 (3d Cir.); cert. denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983); Smithers v. Bailar, 629 F.2d 892 (3d Cir.1980). Therefore, in accordance with McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 688 (1973), the order of proof in this ADEA case requires that Plaintiffs establish a prima facie case of age discrimination by proving that: 1) he is within the protected age group of 40-70 years; 2) he was subject to adverse employment action; 3) he was qualified for the positions in question; and 4) younger employees were treated more favorably. Proof of these facts raises a rebuttable presumption of discrimination which Defendants may counter by presenting a legitimate, non-discriminatory reason for the employment action. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. Accord Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393 (3d Cir.), cert. denied, — U.S. -, 105 S.Ct. 592, 83 L.Ed.2d 702 (1984); Bower v. State Equipment Division, 31 BNA FEP cases 825 (W.D.Pa.1983). In cases (such as the instant action) involving reductions-in-force as opposed to individual discharges, courts have modified the Burdine/McDonnell Douglas analysis to address the fact that in most cases, a laid-off employee is not necessarily replaced, but rather his duties are either subsumed in the job responsibilities of other employees or are not performed at all. In these instances, the courts have generally required the Plaintiff, in order to establish a prima facie case, to show that he is in the protected age group and was laid off while younger employees working in similar jobs were retained. See, e.g., Duffy v. Wheeling-Pittsburgh Steel Corp., 738 F.2d at 1395 n. 3; Douglas v. Anderson, 656 F.2d 528 (9th Cir.1981). In the present case, it is undisputed that Plaintiffs were members of the protected class and were subjected to adverse action. While there is some dispute about Plaintiffs’ qualifications for the positions at issue, for purposes of this Motion, this Court concludes that Plaintiffs have adduced sufficient evidence to permit a trier of fact" }, { "docid": "22336668", "title": "", "text": "made by Soto, the decision-maker, to Kanafani’s younger replacement, the comment does not amount to direct evidence of discrimination. Though probative circumstantial evidence of Soto’s state of mind, the comment still requires us to infer that Soto’s interest in promoting young men motivated his decision to terminate Kanafani. In similar instances, our court has refused to classify such comments as direct evidence of discrimination. See, e.g., Beaver v. Rayonier Inc., 188 F.3d 1279, 1285-86 (11th Cir.1999) (finding that decision-maker’s comment that he wanted to attract “younger, engineer-type employees or supervisors” in reduction-in-force case did not rise to level of direct evidence of discrimination); Burrell v. Board of Trustees of Georgia Military College, 125 F.3d 1390, 1393-94 (11th Cir.1997) .(holding that evidence which suggests, but does not prove, a discriminatory motive, is circumstantial evidence by definition). We therefore conclude that the district court correctly found no direct evidence of age discrimination. 2. Circumstantial Evidence of Discrimination In evaluating age discrimination claims based on circumstantial evidence, we require a plaintiff to initially satisfy a four-part prima facie requirement: (1) that she was a member of the protected group of persons between the ages of forty and seventy; (2) that she was subject to adverse employment action; (3) that a substantially younger person filled the position that she sought or from which she was discharged; and (4) that she was qualified to do the job for which she was rejected. See Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir.1998) (citations omitted). We conclude that both Appellants established prima facie cases of age discrimination. First, there is no dispute that Appellants satisfied the first two requirements. Both Appellants are members of the protected group and were subjected to adverse employment actions. As for the third element, Appellees concede that Damon satisfied the third require ment in that he was replaced by someone “substantially younger.” However, both the. Appellees and the district court, in dicta, suggest that Kanafani did not meet this requirement because, at the time of Kanafáni’s termination, his replacement was thirty-seven, while Kanafani was only forty-two. We disagree.." }, { "docid": "4820723", "title": "", "text": "the summary judgment arguments made by the parties. The Court grant’s the plaintiffs motion to strike with respect to Harness’s statement about Fondriest’s words in the committee meeting. IV. Analysis A. Age Discrimination Under the ADEA it is unlawful for an employer to discharge or fail to hire any individual 40 years of age and older or otherwise discriminate against that person with respect to compensation, terms, conditions, or privileges of employment “because of such individual’s age.” 29 U.S.C. § 623(a). An employer can violate the ADEA when it prefers a younger employee, even if that younger employee is within the protected class of workers aged 40 and over. Barnes v. GenCorp Inc., 896 F.2d 1457, 1466 (6th Cir.1990); see also O’Connor v. Consolidated Coin Caterer’s Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). Since the plaintiff gives no direct evidence of age discrimination, he must make the showing described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Blackwell v. Sun Elec. Co., 696 F.2d 1176, 1180 (6th Cir.1983) (courts should allocate burden of proof in.ADEA case according to McDonnell Douglas-Burdine analysis the Supreme Court adopted for Title VII cases). A plaintiff establishes a prima facie case of age discrimination by showing: 1) that he is a member of a protected group; 2) that he was subject to an adverse employment decision; 3) that he was qualified for the position; and 4) that he was replaced by a younger person. Skalka v. Fernald Envtl. Restoration Mgmt. Corp., 178 F.3d 414, 420 (6th Cir.1999). In the context of a reduction in force, the fourth element is modified because the employee is not actually replaced. Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 371 (6th Cir.1999). Instead, the plaintiff must preseht “additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out [the plaintiff] for discharge for impermissible reasons.” Id. (quoting Barnes, 896 F.2d at 1465). This “extra” evidence must be “sufficiently probative” to permit the fact finder to believe the defendant intentionally discriminated against" }, { "docid": "8205303", "title": "", "text": "F,3d at 759. a. Prima faeiecase The elements of a prima facie case under the ADEA are as follows: (1) the plaintiff is a member of the protected class (ie., is over 40 years old); (2) was qualified for the position; (3) suffered an adverse employment action; and (4) was disadvantaged in favor of a significantly younger person. Martin, 78 F.Supp.3d at 294-95; O’Connor, 517 U.S. at 310-13, 116 S.Ct. 1307. At this stage in the proceedings, however, the court is not looking for the mere existence of a prima facie' case. Instead, it weighs the evidence put forth to establish the prima facie case as part of its evaluation of the overall sufficiency of the evidence supporting discrimination. Here, the court finds that the evidence supporting a prima facie case of age discrimination is weak. The first three elements of Plaintiffs prima facie case clearly are present—(1) Plaintiff is older than 40; (2) he was qualified for the position at CISA; and (3) he suffered an adverse employment action. But the fourth element— that Plaintiff was disadvantaged in favor of a significantly’ younger person—is not as evident. Plaintiff largely relies on allegedly, similarly situated employees to establish the fourth prima facie element. See generally PL’s Am. Compl.; PL’s Opp’n; see also Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 296-97 (D.C.Cir.2015), cert. denied,— U.S. -, 136 S.Ct. 1685, 194 L.Ed.2d 771 (2016) (noting that evidence indicating that favorable treatment of similarly situated persons outside the protected class can be “probative of discrimination”); George v. Leavitt, 407 F.3d 405, 412 (D.C.Cir.2005) (finding that a plaintiff can create an inference of discrimination to support her prima facie' case by, among other techniques, “demonstrating that she was treated differently from similar situated employees”). Plaintiff attempts to show that he was disadvantaged in favor of a significantly younger person because younger employees were retained by CISA while two older employees were terminated; PL’s Opp’n at 11. Yet to raise an inference of discrimination based on such evidence, all relevant aspects of each individual's employment situation must be “nearly identical.” Burley, 801 F.3d" }, { "docid": "22336669", "title": "", "text": "requirement: (1) that she was a member of the protected group of persons between the ages of forty and seventy; (2) that she was subject to adverse employment action; (3) that a substantially younger person filled the position that she sought or from which she was discharged; and (4) that she was qualified to do the job for which she was rejected. See Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir.1998) (citations omitted). We conclude that both Appellants established prima facie cases of age discrimination. First, there is no dispute that Appellants satisfied the first two requirements. Both Appellants are members of the protected group and were subjected to adverse employment actions. As for the third element, Appellees concede that Damon satisfied the third require ment in that he was replaced by someone “substantially younger.” However, both the. Appellees and the district court, in dicta, suggest that Kanafani did not meet this requirement because, at the time of Kanafáni’s termination, his replacement was thirty-seven, while Kanafani was only forty-two. We disagree.. Previously, we have held that a replacement who is only three years younger is sufficient to establish a prima facie case. See Carter v. DecisionOne Corp., 122 F.3d 997, 1003 (11th Cir.1997) (holding that plaintiff aged 42, who was replaced by employee aged 39, met the “substantially younger” replacement requirement under ADEA) (citing Carter v. City of Miami, 870 F.2d 578, 582-83 (11th Cir.1989)). Here, there is a five year age difference between Kanafani and his replacement. We therefore find that Kanafani has satisfied the “substantially younger” replacement requirement. Finally, we conclude that Kanafani and Damon were “qualified” for their respective positions, satisfying the fourth and final prima' facie requirement. In age discrimination cases, our court focuses on a plaintiffs “skills and background to determine if they were qualified for a particular position.” Clark v. Coats & Clark, 990 F.2d 1217, 1227 (11th Cir.1993). Our precedent holds that if a plaintiff has enjoyed a long tenure at a certain position, we can infer that he or she is qualified to hold that particular position. See" }, { "docid": "23512035", "title": "", "text": "privileges of employment on the basis of their age. See 29 U.S.C. § 623(a)(1). Age discrimination may be established by direct or indirect evidence. See Connors v. Chrysler Fin. Corp., 160 F.3d 971, 972 (3d Cir.1998). When evaluating ADEA discrimination claims based on indirect evidence, a plaintiff may establish a prima facie case of age discrimination under the ADEA by demonstrating that she: (1) was a member of a protected class, i.e., that she was over forty, (2) is qualified for the position, (3) suffered an adverse employment decision, (4) and was ultimately replaced by a person sufficiently younger to permit an inference of age discrimination. See id. at 973. To survive a motion for summary judgment, the evidence must be “ ‘sufficient to convince a reasonable factfinder to find all of the elements of [the] prima facie case.’ ” Id. (quoting Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.1997) (en banc)). Here, the District Court found that Duffy had failed to show a prima facie case because she did not produce evidence sufficient to convince a reasonable fact finder that she had established any adverse employment action. We agree. Duffy asserts that she established a prima facie case because she was constructively discharged, and thus suffered an adverse employment action. We employ an objective test to determine whether an employee can recover on a claim of constructive discharge. See id. at 974. Specifically, a court must determine “whether a reasonable jury could find that the [employer] permitted conditions so unpleasant or difficult that a reasonable person would have felt compelled to resign.” Id. (citations omitted). Duffy claims that she was constructively discharged because she experienced a “continuous pattern of discriminatory treatment” at Paper Magic. As noted earlier, she contends that: 1) she was not considered for a promotion to Manager of the Customer Service/Order Processing Department because of her age; 2) her department was consistently understaffed and management delayed in providing needed assistance; 3) her supervisors made negative remarks about her age; 4) she was excluded from a training seminar for managers; 5) she was" }, { "docid": "23104495", "title": "", "text": "a position lower than the assistant manager job he held before is tantamount to a demotion and, as such, clearly qualifies as an adverse employment decision under the anti-discrimination statutes. See Kaluczky v. City of White Plains, 57 F.3d 202, 208 (2d Cir.1995). Even reassignment to a less desirable position suffices to satisfy the adverse employment action element of the prima facie case. See Richardson v. New York State Dep’t of Correctional Svc., 180 F.3d 426, 444 & n. 4 (2d Cir.1999). We see no reason why an employer should be allowed to accomplish an adverse reassignment or demotion with invidious intent through layoff and rehiring when that same action would be impermissible if done in the course of employment. Ill Resolution of the Claims Alleged in the Complaint A. ADEA Claim Tarshis clearly satisfies the first three elements of the ADEA prima facie case. He was 67 years old when discharged, and thus a member of the protected class. There is no dispute that his performance had been consistently good and that he was qualified for the position of assistant manager that he held. Our discussion above demonstrates that he suffered an adverse employment action. To survive the motion to dismiss, Tarshis must show that the adverse employment action occurred in circumstances that give rise to an inference of discrimination on the basis of age. To that subject we now turn. Tarshis was replaced as assistant manager at Lindy’s by a 59-year-old man. Although an inference of discrimination cannot be based on a plaintiffs replacement by another person who is only slightly younger, see O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996), we have held that the replacement of an employee within the protected class by two others, one 11 years younger and the other eight months younger, satisfied the fourth element of a prima facie case under the ADEA. See Hollander v. American Cyanamid Co., 172 F.3d 192, 199 (2d Cir.1999). A difference of eight years between the age of the person discharged and his replacement, as in the" }, { "docid": "23646173", "title": "", "text": "by a person sufficiently younger to permit an inference of age discrimination. Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001). In the context of a reduction in force, in order to satisfy the fourth element of a prima facie case under the ANEA, a plaintiff must show that the employer retained a sufficiently younger similarly situated employee. Anderson v. Consol. Rail Corp., 297 F.3d 242, 249-50 (3d Cir .2002). As we have indicated, however, Monaco maintains that the NJLAD does not require him to show that AGAC retained a sufficiently younger employee in order for him to make out a prima facie case of age discrimination in a reduction-in-force case and thus it differs from the ADEA. His failure to make this showing led the district court to grant the appellees’ motion for a summary judgment. In support of this argument Monaco cites Sisler, 723 A.2d at 956, Petrusky v. Maxfli Dunlop Sports Corp., 342 N.J.Super. 77, 775 A.2d 723 (2001), and Reynolds v. Palnut Co., 330 N.J.Super. 162, 748 A.2d 1216 (2000). The NJLAD provides, in pertinent part, that “[a]ll persons shall have the opportunity to obtain employment ... without discrimination because of ... age.... This opportunity is recognized as and declared to be a civil right.” N.J. Stat. Ann. § 10:5-4 (West 2002). It further states, in relevant part that: It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination: a. For an employer, because of the ... age ... of any individual ... to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.... Id. § 10:5-12. In general, to establish a prima facie case under the NJLAD for unlawful termination, and thus satisfy the first step of the burden shifting analysis, a plaintiff must demonstrate that he or she: (1) belongs to a protected class, (2) was qualified for the position held," }, { "docid": "23646190", "title": "", "text": "situated requirement we will be inviting “mischief’ by employers. Appellant’s br. at 17. He argues that employers will manipulate reductions in force by first placing older workers into “dead-end” positions for a few months where there are no similarly situated individuals and then later terminating or laying off the older employees, thereby, according to Monaco’s reasoning, avoiding liability for age discrimination. We disagree. First, Monaco’s case fails to present such a factual scenario. AGAC laid off Monaco after he had been employed as vice president of sales for the Eastern Region for many years and certainly it did not “shuffle” him into a dead-end position prior to the reduction in force. Second, as explained above, a determination of whether an individual can satisfy the “similarly situated” requirement triggers a fact-intensive inquiry based on a whole constellation of factors facing that individual employee. Certainly if there was evidence that an employer transferred an older worker from his position to a new one which happens to have few similarly situated individuals soon before his termination, a court would be able to consider that circumstance in determining whether the employee established the fourth element of his or her prima facie case of age discrimination. See Marzano v. Computer Science Corp., 91 F.3d 497, 511 (3d Cir.1996). But we reiterate that here there was no such transfer. In view of the circumstance that Shaw was the only employee at AGAC similarly situated to him, Monaco’s case under the NJLAD cannot be successful. In O’Connor, 517 U.S. at 312-13, 116 S.Ct. at 1310, the Supreme Court explained that under the ADEA an individual cannot make out a prima facie case such that a court will infer unlawful age discrimination if the employee is replaced with another worker who is “insignificantly younger.” We subsequently have explained that in order to satisfy the sufficiently younger standard, “there is no particular age difference that must be shown, but while different courts have held ... that a five year difference can be sufficient, ... a one year difference cannot.” Showalter v. Univ. of Pittsburgh Med. Ctr., 190 F.3d 231," }, { "docid": "9443394", "title": "", "text": "that Seaboard’s proffered reason is pretextual, that is, “unworthy of belief.” Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir.1998) (quoting Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995)). 1. Prima Facie Case Generally, to establish a prima facie case of age discrimination in termination from employment, plaintiff must show: (1) she was a member of the protected age group, over age 40; (2) she was performing satisfactorily; (3) Seaboard terminated her employment; and (4) she was replaced by a younger person. BUI v. IBP, Inc., 171 F.Supp.2d 1168, 1173 (D.Kan.2001) aff'd 34 Fed.Appx. 353 (10th Cir.2002). This test has been modified in a reduction-in-force context because the discharged employee is not always replaced with another employee. Thus, courts have modified the fourth element by requiring plaintiff to “produc[e] evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.” Lucas v. Dover Corp., Norris Div., 857 F.2d 1397, 1400 (10th Cir.1988) (alteration in original) (quoting Branson v. Price River Coal Co., 853 F.2d 768, 771 (10th Cir.1988)). Because Seaboard eliminated plaintiffs position, this modified fourth element is applicable. Of the four elements on her termination claim, the only one that Seaboard contests is the fourth. The fourth element may be established through circumstantial evidence that the plaintiff was treated less favorably than younger employees during the reduction-in-force. See Carter v. Newman Mem’l County Hosp. 49 Fed.Appx. 243, 245 (10th Cir.2002); Ingels v. Thiokol Corp., 42 F.3d 616, 621 (10th Cir.1994). “Evidence that an employer fired qualified older employees but retained younger ones in similar positions is sufficient to create a rebuttable presumption of discriminatory intent.” Branson, 853 F.2d at 771. Plaintiff makes no allegation that anyone replaced her, but she argues that Seaboard discriminated against her by deciding to keep younger employees in similar positions and terminating her employment when she declined less desirable jobs at a substantially lower rates of pay. Seaboard claims that it eliminated plaintiffs position and that it did not treat plaintiff less favorably than similarly situated employees." }, { "docid": "22092927", "title": "", "text": "804, 805 (1992). . Under the McDonnell Douglas line of cases, as applied to the ADEA and the analogous provision of the PHRA, there are three steps in the analysis of pretext discrimination cases. See McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. at 1824-25. First, the plaintiff must establish a prima facie case of discrimination. Hicks, 509 U.S. at 506, 113 S.Ct. at 2746-47. This is done if she shows that she (1) is a member of the protected class, i.e. at least 40 years of age, 29 U.S.C. § 631(a), (2) is qualified for the position, (3) suffered an adverse employment decision, and (4) in the case of a demotion or discharge, was replaced by a sufficiently younger person to create an inference of age discrimination, Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.1987). Second, upon such a showing by the plaintiff, the burden shifts to the employer to produce evidence of a legitimate nondiscriminatory reason for the adverse decision. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2747. Third, the plaintiff must then demonstrate that the employer’s articulated reason was not the actual reason, but rather a pretext for discrimination. Id. at 507, 113 S.Ct. at 2747. Simpson incorrectly defines the second step as shifting the burden to the employer to show that its legitimate reason, alone, would have induced the employment decision. Such a burden of showing that the same decision would have been made absent discriminatory motives applies in Price Waterhouse mixed motive cases, not McDonnell Douglas pretext cases. See Price Waterhouse v. Hopkins, 490 U.S. 228, 276, 109 S.Ct. 1775, 1805, 104 L.Ed.2d 268 (1989) (O’Connor, J., concurring); Walden v. Georgia-Pacific Corp., 126 F.3d 506, 512 (3d Cir. 1997), cert. denied,U.S. -, 118 S.Ct. 1516, 140 L.Ed.2d 669 (1998). See generally Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1225 n. 6 (3d Cir.1994)(summarizing Price-Waterhouse eviden-tiary scheme), vacated, 514 U.S. 1034, 115 S.Ct. 1397, 131 L.Ed.2d 286 (1995), and modified in part, 65 F.3d 1072 (3d Cir.1995). This case is clearly not a mixed motive case because Simpson has pointed" }, { "docid": "18288959", "title": "", "text": "evidence of discrimination. 3. Prima Facie Case (a) Standard Assuming that Blair lacks direct evidence of discrimination, we consider whether he has offered sufficient evidence to create a genuine issue of material fact regarding those elements of the prima fa-cie case that are in dispute. “The burden of establishing a prima facie case of disparate treatment is not onerous.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089. Generally, at the summary judgment stage, a plaintiffs burden is merely to present evidence from which a reasonable jury could conclude that the plaintiff suffered an adverse employment action “under circumstances which give rise to an inference of unlawful discrimination.” Id. Thus, to establish a prima facie case of age discrimination, a plaintiff normally must show that: (1) he or she was a member of a protected age class (i.e., at least forty years old); (2) he or she suffered an adverse employment decision; (3) he or she was qualified for the job or promotion; and (4) the employer gave the job to a younger employee. See Rowan, 360 F.3d at 547. The Supreme Court and this court have set forth a number of more specific ways by which a plaintiff may satisfy the fourth element. See, e.g., O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996) (concluding that a plaintiff alleging age discrimination may satisfy the fourth element by introducing evidence that the plaintiff was replaced by someone “substantially younger”); McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817 (concluding that a plaintiff turned down for a job may show “that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications”); Wright v. Murray Guard, Inc., 455 F.3d 702, 707 (6th Cir.2006) (concluding that a fired plaintiff may show that “ ‘he or she was replaced by someone outside the protected class or was treated differently than similarly-situated, non-protected employees’ ” (quoting DiCarlo, 358 F.3d at 415)); Monette, 90 F.3d at 1185 (concluding that a plaintiff alleging discrimination on the basis of disability may show" }, { "docid": "6315607", "title": "", "text": "4) that she was replaced by a younger person. Skalka v. Fernald Envtl. Restoration Mgmt. Corp., 178 F.3d 414, 420 (6th Cir.1999). If the plaintiff makes out a prima facie case, the burden shifts to the employer to describe a legitimate, nondiscriminatory reason for the employment action. McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. 1817; Barnes, 896 F.2d at 1466. If the employer gives a legitimate, nondiscriminatory reason for the employment action then the employee must show the employer’s stated reason is pretextual. McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. 1817; Godfredson v. Hess & Clark, Inc., 173 F.3d 365 (6th Cir.1999). Although the burden of production shifts, Clevidence retains the ultimate burden of persuading the trier of fact that intentional discrimination occurred. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 518, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (citation omitted). The plaintiff must not only establish a prima facie case, but must also show that age “was a determining factor” in Wayne Bank’s adverse decision. Stein v. National City Bank, 942 F.2d 1062, 1064 (6th Cir.1991). The plaintiff meets the first and second elements of her prima facie case. Since Clevidence was forty-six years old when fired she clearly is a member of a protected group and suffered an adverse employment decision. The defendant argues Clevidence fails to meet the third and fourth prongs of her prima facie case. Wayne Bank asserts that the plaintiff was not qualified for her senior accountant position and has not shown that a substantially younger person replaced her. The Court holds that Clevidence was qualified for the senior accountant position she held. However, Clevidence does not show that a person young enough to create an inference of age discrimination replaced her. In order to prove the fourth element, the plaintiff must show she was replaced by an individual “substantially younger” than herself. Bush v. Dictaphone Corp., 161 F.3d 363, 368 (6th Cir.1998). In Bush, the United States Court of Appeals for the Sixth Circuit held as follows: Assuming that Bush met the first three prongs of the McDonnell Douglas test," }, { "docid": "15360337", "title": "", "text": "establish a prima facie case of age discrimination under the ADEA, a plaintiff who is discharged in a RIF must prove that (1) she is within the protected age group, (2) she was doing satisfactory work, (3) she was discharged despite the adequacy of her work, and (4) there is some evidence the employer intended to discriminate against her in reaching its RIF decision. Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir.), cert. denied, 525 U.S. 1054, 119 S.Ct. 617, 142 L.Ed.2d 556 (1998). See Ingels, 42 F.3d at 621. The fourth element is satisfied if the plaintiff “held a similar position to a younger retained employee.” Id. at 1167. Proof of a prima facie case creates “ ‘a rebuttable presumption of discriminatory intent.’ ” Ingels, 42 F.3d at 621 (quoting Branson v. Price River Coal Co., 853 F.2d 768, 771 (10th Cir.1988)). Of the four elements on her termination claim, the only ohe that the defendant contests is the fourth. Plaintiff contends that the fourth element was eliminated by the United States Supreme Court in O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996), in which the Court stated: The discrimination prohibited by the ADEA is discrimination ‘because of (an) individual’s age,’ (citation omitted) though the prohibition is ‘limited to individuals who are at least 40 years of age.’ (Citation omitted.) This language does not ban discrimination against employees because they are aged 40 or older; it bans discrimination against employees because of their age, but limits the protected class to those who are 40 or older. The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age. 517 U.S. 308, 116 S.Ct. 1307, 134 L.Ed.2d at 438. Plaintiff reads the above language to mean that “discrimination is discrimination and needs not be contrasted with other employees that are in or out (of) the protected class.” (Dk.- 58, p. 26.) Instead, a review of the O’Connor" }, { "docid": "1343639", "title": "", "text": "Federal claim. A. Prima Facie Case of Age Discrimination Generally, in the absence of direct evidence, a plaintiff may .establish a circumstantial ease of age discrimination using the framework set forth in McDon nell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as modified for ADEA cases in O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310-11, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). The modified McDonnell Douglas framework requires a plaintiff to establish a prima facie case as follows: (1) he was a member of a protected class; (2) he was subjected to an adverse employment action; (3) he was qualified for the particular position; and (4) the successful applicant was a substantially younger person. Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 371 (6th Cir.1999). In the case sub judice, the Defendants have asserted that the Plaintiff was discharged pursuant to a reduction-in-force (“RIF”). If an employer discharges a plaintiff in connection with a RIF, “the plaintiff is not required to plead the fourth prong of the prima facie framework because in a reduction-of-force situation the plaintiff is not in fact replaced.” Id. (citing Scott v. Goodyear Tire & Rubber Co., 160 F.3d 1121, 1126 (6th Cir.1998)). Rather, “the plaintiff must present ‘additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out [the plaintiff] for discharge for impermissible reasons.’ ” Id. (citing Scott, 160 F.3d at 1126). The Defendants have conceded that the Plaintiff can establish the first three elements of a prima facie case of age discrimination. Also, the Plaintiff has conceded that he cannot prove that he was replaced by a younger worker who assumed his responsibilities at the Weirton facility. (Steiner Dep. at 117-18.) Consequently, the Plaintiff attempts to prove the fourth element of his prima facie case using both direct and circumstantial evidence. Provided the Plaintiff establishes a pri-ma facie case, the burden shifts to the Defendants to “produce evidence of a nondiscriminatory reason for its action,” which may be the alleged RIF. Godfredson, 173 F.3d at 371 (citing Scott, 160 F.3d" }, { "docid": "23646172", "title": "", "text": "at which Monaco lost his case in the district court. If the plaintiff does so the burden shifts to the defendant to articulate a legitimate non-discriminatory reason for the adverse employment action. Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 744 A.2d 1186, 1197-98 (2000). Then, if the defendant meets this rather light burden, the plaintiff must discredit the- defendant’s proffered reason for its action or adduce evidence that discrimination was more likely than not a motivating or determinative cause of the adverse employment action. See Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 2004 WL 188083, at *2 (3d Cir. Feb.2, 2004) (ADEA case). In an ordinary employment termination case under the ADEA to establish a prima facie case of age discrimination at the first step of the McDonnell Douglas burden shifting framework a plaintiff must show that he or she: (1) was a member of the protected class, i.e., was over 40, (2) was qualified for the position, (3) suffered an adverse employment decision, and (4) ultimately was replaced by a person sufficiently younger to permit an inference of age discrimination. Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001). In the context of a reduction in force, in order to satisfy the fourth element of a prima facie case under the ANEA, a plaintiff must show that the employer retained a sufficiently younger similarly situated employee. Anderson v. Consol. Rail Corp., 297 F.3d 242, 249-50 (3d Cir .2002). As we have indicated, however, Monaco maintains that the NJLAD does not require him to show that AGAC retained a sufficiently younger employee in order for him to make out a prima facie case of age discrimination in a reduction-in-force case and thus it differs from the ADEA. His failure to make this showing led the district court to grant the appellees’ motion for a summary judgment. In support of this argument Monaco cites Sisler, 723 A.2d at 956, Petrusky v. Maxfli Dunlop Sports Corp., 342 N.J.Super. 77, 775 A.2d 723 (2001), and Reynolds v. Palnut Co., 330 N.J.Super. 162, 748" } ]

[ { "docid": "13315673", "title": "", "text": "as necessary to determine the nature of the call. So, if Little’s interception went beyond the point necessary to determine the nature of the call, it went beyond the scope of Watkins’ actual consent. Consent under title III is not to be cavalierly implied. Title III expresses a strong purpose to protect individual privacy by strictly limiting the occasions on which interception may lawfully take place. See United States v. Harpel, 493 F.2d 346, 351 (10th Cir.1974). Stiff penalties are provided for its violation. It would thwart this policy if consent could routinely be implied from circumstances. Jandak v. Village of Brookfield, 520 F.Supp. 815, 820 (N.D.Ill.1981). Thus, knowledge of the capability of monitoring alone cannot be considered implied consent. See Campiti v. Walonis, 611 F.2d 387, 394 (1st Cir.1979); Crooker v. United States Department of Justice, 497 F.Supp. 500, 503 (D.Conn.1980) (prisoners’ knowledge that calls were routinely monitored did not constitute consent to it). The cases that have implied consent from circumstances have involved far more compelling facts than those presented here. In Jandak, the police officer whose call was intercepted knew or should have known that the line he was using was constantly taped for police purposes; furthermore, an unmonitored line was provided expressly for personal use. 520 F.Supp. at 824-25. In Simmons v. Southwestern Bell Telephone Co., 452 F.Supp. 392, 393-94 (W.D.Okl.1978), aff’d, 611 F.2d 342 (10th Cir.1979), the plaintiff made a personal call on telephones which were to be used exclusively for business calls and which he knew were regularly monitored. He had been warned on previous occasions to stop making personal calls from his business telephone; other telephones were specifically provided for personal use. As in Jandak, the Simmons court held that the employee was fully aware of the extent of the monitoring and deliberately ignored the strong probability (certainty in Jandak) of monitoring. 452 F.Supp. at 396. The Jandak and Simmons situations are worlds apart from Watkins’ case. Watkins consented to a scheme of limited monitoring, on which she relied. We can think of no reason why consent under title III cannot be limited." } ]

[ { "docid": "23192247", "title": "", "text": "the Fourth Amendment.” 389 U.S. at 353, 88 S.Ct. at 212. Unlike Katz, the instant case involves not a search and seizure, but a misplaced confidence—not surreptitious eavesdropping, but merely the obtaining of evidence of a conversation in which the Government, through its informer, was a participant. See Lopez v. United States, 373 U.S. 427, 439, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). Had the person on the other end of the telephone line in Katz allowed a Government agent to listen in on the conversation, there would have been no constitutional violation. Rathbun v. United States, 355 U.S. 107, 111, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); United States v. Williams, 311 F.2d 721, 725 (7th Cir. 1963), cert. den. 374 U.S. 812, 83 S.Ct. 1703, 10 L.Ed.2d 1035 (1963). Thus, once the conversation is deprived of its private character through the consent of one of the parties thereto, the Fourth Amendment, not having prohibited the initial exposure, does not prohibit the introduction into evidence of the conversation as transmitted or recorded. As stated in Katz, itself, “what a person knowingly exposes to the public, even in his own home or office, is not subject to Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210 [87 S.Ct. 424, 427, 17 L.Ed.2d 312] * * * ” 389 U.S. at 351, 88 S.Ct. at 511 (emphasis added). Thus, any expectation, by defendant, of privacy, when the person to whom the defendant is speaking consents to exposure of the conversation is not reasonable and therefore not protected by the Fourth Amendment. This Court recently pointed out the distinction between electronic eavesdropping and misplaced confidence in United States v. Haden, 397 F.2d 460 (7th Cir. 1968), where we held (at page 465): “One who intends a conversation or transaction to be private and takes reasonable steps to keep it private is protected from government intrusion unauthorized by warrant or well-defined special circumstances. Cf. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). But he is not protected from the consequences of error if he" }, { "docid": "23192246", "title": "", "text": "even in his own home or office, is not subject to Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210 [87 S.Ct. 424, 427, 17 L.Ed.2d 312]; United States v. Lee, 274 U.S. 559, 563 [47 S.Ct. 746, 748, 71 L. Ed. 1202], But what he seeks to preserve as private, even in an area aceessable to the public, may be constitutionally protected. * * * ” 389 U.S. at 351-352, 88 S.Ct. at 511. The use of this language by the Supreme Court illustrates the distinction between Katz and the instant case, and demonstrates the present state of the law. In Katz, the Government surreptitiously overheard one side of a conversation without the consent of either party thereto, and after the defendant had taken reasonable steps to protect his privacy. The Court, therefore, held that “[t]he Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure’ within the meaning of the Fourth Amendment.” 389 U.S. at 353, 88 S.Ct. at 212. Unlike Katz, the instant case involves not a search and seizure, but a misplaced confidence—not surreptitious eavesdropping, but merely the obtaining of evidence of a conversation in which the Government, through its informer, was a participant. See Lopez v. United States, 373 U.S. 427, 439, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). Had the person on the other end of the telephone line in Katz allowed a Government agent to listen in on the conversation, there would have been no constitutional violation. Rathbun v. United States, 355 U.S. 107, 111, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); United States v. Williams, 311 F.2d 721, 725 (7th Cir. 1963), cert. den. 374 U.S. 812, 83 S.Ct. 1703, 10 L.Ed.2d 1035 (1963). Thus, once the conversation is deprived of its private character through the consent of one of the parties thereto, the Fourth Amendment, not having prohibited the initial exposure, does not prohibit the introduction into evidence of the conversation as transmitted or recorded. As stated" }, { "docid": "23094646", "title": "", "text": "Paradiso argue that the district court erred in denying defendants’ motion to suppress the Lewisburg tapes. They contend that recording the telephone conversations violated Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-20, and the Fourth Amendment of the United States Constitution. Abbamonte also maintains that the inadvertent destruction of some of the Lewisburg tapes should lead to the suppression of the rest. The Government argues that Title III procedures do not apply to prison conversations and that there is no Fourth Amendment privacy interest preventing security-motivated interception of telephone conversations made at Lewis-burg. The Government also maintains that even if Title III applies to prison communications, under 18 U.S.C. § 2511(2)(c) it is not unlawful for “a person acting under color of law to intercept a wire or oral communication, where ... one of the parties to the communication has given prior consent to such interception.” Title III clearly applies to prison monitoring. United States v. Paul, 614 F.2d 115, 117 (6th Cir.), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980); Campiti v. Walonis, 611 F.2d 387, 392 (1st Cir.1979); Crooker v. United States Dep't of Justice, 497 F.Supp. 500, 502 (D.Conn.1980); see also United States v. Figueroa, 757 F.2d 466, 472 (2d Cir.1985) (assuming Title III procedures for wiretap orders apply to prison surveillance). However, we agree with the Government that the monitoring in this case fell within the consent exception to Title III. The legislative history shows that Congress intended the consent requirement to be construed broadly. The Senate Report specifically says in relation to section 2511(2)(c): “Consent may be expressed or implied. Surveillance devices in banks or apartment houses for institutional or personal protection would be impliedly consented to.” S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News 2112, 2182. Indeed, the Senate Report cites a line of cases allowing recording or eavesdropping by government agents or informers who were parties to a conversation or who are allowed to listen by explicit consent of a party to the conversation. Id. (citing" }, { "docid": "788185", "title": "", "text": "a party thereto consents. The statutory exceptions allow interception if “one of the parties to the communication has given pri- or consent.” 18 U.S.C. § 2511(2)(c), (d). The exception reflects a line of cases, decided under the Fourth Amendment, allowing recording or eavesdropping by government agents or informers who were parties to the conversation or who were allowed to listen by explicit consent of a party to the conversation. Senate Report at 2182, citing Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). In this case, however, Capaecio denies any knowledge that the line he used was being recorded, and certainly did not consent to the recording. When considering a statute designed to protect privacy, a court must be reluctant to give expansive reading to the exceptions. In this instance, the difference between consent and implied consent is enormous, and allowing application of the consent exception when the victim did not know that the conversation would be recorded would distort the plain requirement of the statute of “prior consent”. See Campiti v. Walonis, 611 F.2d 387 (1st Cir. 1979); Crooker v. United States Department of Justice, 497 F.Supp. 500 (D.Conn.1980). Incredibly, defendants also argue that Capaccio “consented” to the disclosure of the intercepted conversation by appealing his suspension and by failing to move to suppress the tape at the hearing. In addition to the fact that, as it turned out, no attempt to use the tape was made, and so such a motion was unnecessary, this argument is patently frivolous. Presumably, defendants would construe exercise of the right to appeal, regardless of defendant’s intention, as consent to violation of constitutional rights. In any event, the legislative history specifically provides that retroactive authorization would not be possible under this Section. Senate Report at 2182. This is especially clear when the authorization is effectively coerced by the threatened use of the recording in judicial proceedings. See Weiss v." }, { "docid": "22316502", "title": "", "text": "assured they were not obscene or threatening,” there was no evidence that plaintiff was aware of the praxis. 727 F.Supp. at 687. The matter brooks no further iteration. Following accepted summary judgment jurisprudence, we take as undisputed that (1) plaintiff was told unequivocally that all incoming calls would be recorded, and (2) Smith did not qualify the warning by telling him that she planned to listen only until she could ascertain whether the call was offensive. C. Making the Connection. It remains only for us to link applicable law to undisputed fact. The district court ruled that plaintiff, in taking the call from Jackson and conversing with him on Smith’s telephone, impliedly consented to the interception. Id. We think that this ruling was inevitable. Plaintiff had been unmistakably warned on a number of occasions that all incoming calls were being monitored. In light of so sweeping a warning, he continued to receive calls and talk unguardedly on Smith’s personal line without the slightest hint of coercion or exigent circumstance. Plaintiff was free to use some other instrument; or since outgoing calls were not recorded, to return calls on Smith’s telephone and thus avoid any unwanted eavesdropping. Given “the circumstances prevailing,” Campiti, 611 F.2d at 393, it seems altogether clear that plaintiff “knowingly agreed to the surveillance.” Amen, 831 F.2d at 378. His consent, albeit not explicit, was manifest. No more was required. See Willoughby, 860 F.2d at 19-20 (consent implied from inmates’ telephone use after repeated actual and constructive notice); Amen, 831 F.2d at 379; Bonanno, 487 F.2d at 658-59. Plaintiff asserts that our earlier decision in Campiti, 611 F.2d 387, is to the contrary. The assertion is bootless. In Campiti, we applied a clear error standard, Fed.R.Civ.P. 52(a), and upheld the district court’s refusal to imply consent from evidence showing that a prison inmate “should have known his call would probably be monitored.” 611 F.2d at 393. But there, whatever suspicions might have taken wing, no general warnings had been given: although convicts commonly expected their calls to be monitored, “[t]here were no regulations at [the prison] informing inmates" }, { "docid": "16916473", "title": "", "text": "let alone for other than quality control. C. Prior Consent Exception The statute authorizes the interception of wire communications “where ... one of the parties to the communication has given prior consent to such interception.” 18 U.S.C. § 2511(2)(c) & (d) (1994). And it has been uniformly held that implicit consent will satisfy. See Griggs-Ryan v. Smith, 904 F.2d 112, 116-18 (1st Cir.1990); United States v. Willoughby, 860 F.2d 16, 19 (2d Cir.1988). Berry claimed that neither he nor Tamposi ever consented to the monitoring of their calls. The government argues, however, that they did know (or should have known) that Watch Officers, as part of their duties, listened to conversations. They particularly fault Berry for not alleging that the operators told him they were dropping off the line after the calls were placed. The government’s argument presumably is that as a matter of law any reasonable person would assume that an operator stayed on the line if not told otherwise. We think that proposition is absurd. Implied consent, to be sure, “is inferred ‘from surrounding circumstances indicating that the [party] knowingly agreed to the surveillance.’” Griggs-Ryan, 904 F.2d at 117 (quoting United States v. Amen, 831 F.2d 373, 378 (2d Cir.1987)). The key question in such an inquiry obviously is whether parties were given sufficient notice. Compare Griggs-Ryan, 904 F.2d at 118 (implied consent where prison inmate was expressly informed that incoming calls were being monitored), with Campiti v. Walonis, 611 F.2d 387, 393 (1st Cir.1979) (no implied consent where regulations did not inform inmates of monitoring). Without actual notice, consent can only be implied when “[t]he surrounding circumstances [ ] convincingly show that the party knew about and consented to the interception.” United States v. Lanoue, 71 F.3d 966, 981 (1st Cir.1995) (emphasis added). The government may be able to establish that Berry was aware that the Operations Center had the capacity to monitor calls. But appellees have introduced no evidence that either he or Tamposi was told that these specific conversations would be monitored. Nor do we think that the circumstances surrounding these conversations remotely suggest that" }, { "docid": "23094649", "title": "", "text": "implied in law where participant did not but reasonably should have known that line was monitored); Crooker v. United States Dep’t of Justice, 497 F.Supp. at 503 (knowledge of monitoring not sufficient to establish consent). Paradiso and Abbamonte impliedly consented to the interception of their telephone calls by use of the prison telephones. They were on notice of the prison’s interception policy from at least four sources. The Code of Federal Regulations provides public notice of the possibility of monitoring. In addition, inmates receive actual notice. First, upon first arriving at Lewis-burg and upon returning to the institution after an absence of nine months or more, each inmate must attend an admission and orientation lecture in which the monitoring and taping system is discussed. Second, every inmate at Lewisburg receives a copy of The Inmate Informational Handbook which as of September 1984 contained the following notice about the taping system: Telephones at the United States Penitentiary, Lewisburg are located in each housing unit and are turned on every other day on a rotating basis. The phones are in operation Monday through Friday from 8:30 AM until 11:15 PM, excluding counts; on weekends and holidays from 8:15 AM until 11:15 PM, excluding counts. These phones utilized by the inmates are MONITORED and TAPED as well as having the capibility [sic] for VISUAL TAPING. Handbook at 9 (Sept. 1984 ed.) (capitalization in original). Third, notices were placed on each telephone, stating in English and Spanish the following: NOTICE The Bureau of Prisons reserves the authority to monitor conversations on this telephone. Your use of institutional telephones constitutes consent to this monitoring. A properly placed telephone call to an attorney is not monitored. See Figueroa, 757 F.2d at 472, 474 (sign over telephone notified prisoners that calls might be monitored). Evidence indicated appellants received actual notice of the monitoring and taping process. When Abbamonte returned to Lewisburg on October 16, 1984, after being incarcerated at Danbury, he attended an admissions and orientation lecture and received a copy of The Inmate Informational Handbook. Moreover, prison records indicate that on October 8, 1984, Paradiso’s case" }, { "docid": "11882740", "title": "", "text": "Cir., 323 F.2d 430 (1963), cert. den., 376 U.S. 933, 84 S.Ct. 704, 11 L.Ed.2d 652 (1964); United States v. Sferas, 7 Cir., 210 F.2d 69 (1954). Defendants’ general objections and specific objections on other grounds to the admission of the agents’ testimony concerning the telephone conversations did not preserve the § 605 issue on appeal. See On Lee v. United States, 343 U.S. 747, 749-750, n. 3, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), reh. den., 344 U.S. 848, 73 S.Ct. 5, 96 L.Ed. 1270 (1952); United States v. Bender, 7 Cir, 218 F.2d 869 (1955), cert. den, 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253 (1955); United States v. Furlong, 7 Cir, 194 F.2d 1 (1952), cert. den, 343 U.S. 950, 72 S.Ct. 1042, 96 L.Ed. 1352 (1952). The exception to this general rule of nonreviewability is the “plain error” doctrine provided in Rule 52(b) of the Federal Rules of Criminal Procedure, Title 18 U.S.C.A. Here, the record reveals no plain error in the ruling of the trial court now challenged. Appellant argues that even if no proper objection were made, the Government was required to establish the consent of one of the parties to the conversations before examining the witnesses about the contents of the conversations. On the contrary, the burden is on the party opposing the admission of the evidence to establish that the communication was intercepted in violation of § 605. Nardone v. United States, 308 U.S. 338, 339, 60 S.Ct. 266, 84 L.Ed. 307 (1939); United States v. Campbell, 7 Cir, 337 F.2d 396 (1964), cert. den, 379 U.S. 983, 85 S.Ct. 694, 13 L.Ed.2d 573 (1965). If one of the parties consents to the monitoring of the communication, there is no “interception” and evidence of the contents of the communication is admissible. Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957), reh. den, 355 U.S. 925, 78 S.Ct. 363, 2 L.Ed.2d 355 (1958), but the consent must be voluntary, Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L. Ed. 298 (1939). In Weiss, evidence" }, { "docid": "23094648", "title": "", "text": "Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952)). Here we imply consent in fact from surrounding circumstances indicating that the appellants knowingly agreed to the surveillance. See United States v. Rantz, No. 85-40036-04, slip op. at 9 (D.Kan. Sept. 30, 1985) (available on WESTLAW, DCT database); but see Watkins v. L.M. Berry & Co., 704 F.2d 577, 581 (11th Cir.1983) (use of telephone with knowledge of capability of monitoring not implied consent where participant told personal calls not monitored except to extent necessary to determine whether call is personal or business); Campiti v. Walonis, 611 F.2d at 393-94 (use of telephone did not constitute implied consent where participants unaware that call was monitored and no regulations or notices informed inmates that calls might be monitored); Jandak v. Village of Brookfield, 520 F.Supp. 815, 820 n. 5 (N.D.Ill.1981) (consent cannot be implied in law where participant did not but reasonably should have known that line was monitored); Crooker v. United States Dep’t of Justice, 497 F.Supp. at 503 (knowledge of monitoring not sufficient to establish consent). Paradiso and Abbamonte impliedly consented to the interception of their telephone calls by use of the prison telephones. They were on notice of the prison’s interception policy from at least four sources. The Code of Federal Regulations provides public notice of the possibility of monitoring. In addition, inmates receive actual notice. First, upon first arriving at Lewis-burg and upon returning to the institution after an absence of nine months or more, each inmate must attend an admission and orientation lecture in which the monitoring and taping system is discussed. Second, every inmate at Lewisburg receives a copy of The Inmate Informational Handbook which as of September 1984 contained the following notice about the taping system: Telephones at the United States Penitentiary, Lewisburg are located in each housing unit and are turned on every other day on a rotating basis. The" }, { "docid": "4786918", "title": "", "text": "see also United States v. Paul, 614 F.2d 115, 117-20 (6th Cir.) (Phillips, J., concurring in the result), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980). However, even if, as some courts have found, prisoners’ communications generally fall within the scope of Title III, see United States v. Paul, supra, 614 F.2d at 116-17; Campiti v. Walonis, 453 F.Supp. 819, 823 (D.Mass.1978), aff'd, 611 F.2d 387 (1st Cir.1979), the recorded conversations in this case do not. Title III is expressly inapplicable to communications intercepted by any device that is operated “by an investigative or law enforcement officer in the ordinary course of his duties.” 18 U.S.C. § 2510(5)(a)(ii). The correctional officers who conduct the recording and monitoring of inmate conversations at Lewisburg act pursuant to a thoroughly institutionalized, ongoing policy at the prison. Telephone calls are comprehensively recorded and randomly monitored for the purpose of maintaining prison security. The policy is announced in orientation lectures to inmates and in the prison’s “Inmate Informational Handbook.” The policy is also posted on the telephones themselves. In short, the correctional officers at Lewisburg are unquestionably investigative or law enforcement officers acting in the course of their duties. See United States v. Paul, supra, 614 F.2d at 117; United States v. Clark, 651 F.Supp. 76, 78-80 (M.D.Pa.1986); United States v. Rantz, No. 85-40036-04, slip op. at 8 (D.Kan. Sept. 30, 1985) [Available on WEST- LAW, DCTU database]; Crooker v. United States Department of Justice, 497 F.Supp. 500, 503 (D.Conn.1980). Thus, the prison’s monitoring and recording procedures are not subject to the restrictions under Title III. Defendants also challenge the tape recordings on constitutional grounds. They argue first that the prison’s policy of recording their conversations infringes on their First Amendment right to freedom of speech. We note at the outset that “the legitimate governmental interest in order and security of penal institutions justifies the imposition -of certain restraints on inmate correspondence.” Procunier v. Martinez, 416 U.S. 396, 412-13, 94 S.Ct. 1800, 1810-11, 40 L.Ed.2d 224 (1974). In this context, the First Amendment imposes two requirements. Restrictions on inmate communication must" }, { "docid": "788184", "title": "", "text": "defendants fail to identify) do not require that recorded police lines have beeping devices. Also, as indicated by an exhibit of Illinois Bell service charges, the Commission has approved different rates for connection of lines with and without warning devices. Even if these unidentified regulations and tariffs are considered “legislative authorization(s)”, they indicate only that in some circumstances the police may have recorded lines, an obvious proposition since, among other reasons, Title III does not prohibit recording a conversation if one party consents, 18 U.S.C. § 2511(2)(c), (d), and Illinois law specifically exempts police recording of emergency communications, Ill.Rev.Stat. ch. 38, § 14-3(d). The regulations simply do not address, let alone authorize, recording in the circumstances here. They do not constitute the legislative authorization necessary to invoke the statutory good faith defense in this case. From the outset of this case, initially by way of affirmative defense and motion to dismiss, and now in their motion for summary judgment, defendants have relied on the case law and statutory exceptions permitting recording of a conversation if a party thereto consents. The statutory exceptions allow interception if “one of the parties to the communication has given pri- or consent.” 18 U.S.C. § 2511(2)(c), (d). The exception reflects a line of cases, decided under the Fourth Amendment, allowing recording or eavesdropping by government agents or informers who were parties to the conversation or who were allowed to listen by explicit consent of a party to the conversation. Senate Report at 2182, citing Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). In this case, however, Capaecio denies any knowledge that the line he used was being recorded, and certainly did not consent to the recording. When considering a statute designed to protect privacy, a court must be reluctant to give expansive reading to the exceptions. In this instance, the difference between consent and implied consent is enormous, and allowing" }, { "docid": "12518910", "title": "", "text": "134 (1957); Lopez v. United States, 373 U. S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). In support of their position the defendants rely upon United States v. White, 405 F.2d 838 (7th Cir. 1969), cert. granted, 394 U.S. 957, 89 S.Ct. 1305, 22 L.Ed.2d 559 (1969), restored to calendar for reargument, 396 U.S. 1035, 90 S.Ct. 677, 24 L.Ed.2d 679 (1970). The court in the White decision very broadly interpreted the Supreme Court’s decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) and in effect held that in all eases judicial authorization must be obtained prior to intercepting and recording communications unless both parties to the conversation gave prior consent to the monitoring. The White decision, however, is both factually and legally distinguishable from the present situation and therefore is not controlling. It should first be noted that Katz v. United States, supra, relied on by the majority in White, involved monitoring and recording of conversations without the consent of either party to the conversation and is therefore clearly distinguishable from Rathbun. In addition, it is clear that the White decision insofar as it refers to one party consensual interceptions is clearly contra to the recent language in Lee v. Florida, 392 U.S. 378, 381, 88 S.Ct. 2096, 20 L.Ed.2d 1166 (1968) and the holdings in Rathbun v. United States, supra; Lopez v. United States, supra; and On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). Furthermore, this court finds the rationale of the Fourth and Second Circuits more persuasive to situations involving interceptions with the prior consent of one of the participants to the conversation. United States v. De Vore, 423 F.2d 1069, 1074 (4th Cir. 1970); United States v. DiLorenzo, 429 F.2d 216 (2d Cir. 1970); United States v. Kaufer, 406 F.2d 550 (2d Cir.), aff’d on other grounds, 394 U.S. 458, 89 S.Ct. 1223, 22 L.Ed.2d 414, rehearing denied, 395 U.S. 917, 89 S.Ct. 1741, 23 L.Ed.2d 232 (1969). Finally this case is factually distinguishable from the White decision. There the consenting" }, { "docid": "23094650", "title": "", "text": "phones are in operation Monday through Friday from 8:30 AM until 11:15 PM, excluding counts; on weekends and holidays from 8:15 AM until 11:15 PM, excluding counts. These phones utilized by the inmates are MONITORED and TAPED as well as having the capibility [sic] for VISUAL TAPING. Handbook at 9 (Sept. 1984 ed.) (capitalization in original). Third, notices were placed on each telephone, stating in English and Spanish the following: NOTICE The Bureau of Prisons reserves the authority to monitor conversations on this telephone. Your use of institutional telephones constitutes consent to this monitoring. A properly placed telephone call to an attorney is not monitored. See Figueroa, 757 F.2d at 472, 474 (sign over telephone notified prisoners that calls might be monitored). Evidence indicated appellants received actual notice of the monitoring and taping process. When Abbamonte returned to Lewisburg on October 16, 1984, after being incarcerated at Danbury, he attended an admissions and orientation lecture and received a copy of The Inmate Informational Handbook. Moreover, prison records indicate that on October 8, 1984, Paradiso’s case manager presented him with a form containing the written notice of the monitoring and taping system, which Paradiso refused to sign. Thus, the district court properly found that the two defendants had notice of the interception system and that their use of the telephones therefore constituted implied consent to the monitoring. United States v. Vasta, 649 F.Supp. at 990 n. 2. Appellants’ argument that taping their conversations violated the Fourth Amendment is also not compelling. As the Supreme Court construes the Fourth Amendment, prison inmates have no reasonable expectation of privacy. See Hudson v. Palmer, 468 U.S. 517, 527-28, 104 S.Ct. 3194, 3200-01, 82 L.Ed.2d 393 (1984); United States v. Cohen, 796 F.2d 20, 22-23 (2d Cir.), cert. denied, — U.S.-, 107 S.Ct. 189, 93 L.Ed.2d 122 (1986). In the prison context the reasonableness of a search is directly related to legitimate concerns for institutional security. See Block v. Rutherford, 468 U.S. 576, 588, 104 S.Ct. 3227, 3233, 82 L.Ed.2d 438 (1984); Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d" }, { "docid": "23094647", "title": "", "text": "100 S.Ct. 2165, 64 L.Ed.2d 796 (1980); Campiti v. Walonis, 611 F.2d 387, 392 (1st Cir.1979); Crooker v. United States Dep't of Justice, 497 F.Supp. 500, 502 (D.Conn.1980); see also United States v. Figueroa, 757 F.2d 466, 472 (2d Cir.1985) (assuming Title III procedures for wiretap orders apply to prison surveillance). However, we agree with the Government that the monitoring in this case fell within the consent exception to Title III. The legislative history shows that Congress intended the consent requirement to be construed broadly. The Senate Report specifically says in relation to section 2511(2)(c): “Consent may be expressed or implied. Surveillance devices in banks or apartment houses for institutional or personal protection would be impliedly consented to.” S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News 2112, 2182. Indeed, the Senate Report cites a line of cases allowing recording or eavesdropping by government agents or informers who were parties to a conversation or who are allowed to listen by explicit consent of a party to the conversation. Id. (citing Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952)). Here we imply consent in fact from surrounding circumstances indicating that the appellants knowingly agreed to the surveillance. See United States v. Rantz, No. 85-40036-04, slip op. at 9 (D.Kan. Sept. 30, 1985) (available on WESTLAW, DCT database); but see Watkins v. L.M. Berry & Co., 704 F.2d 577, 581 (11th Cir.1983) (use of telephone with knowledge of capability of monitoring not implied consent where participant told personal calls not monitored except to extent necessary to determine whether call is personal or business); Campiti v. Walonis, 611 F.2d at 393-94 (use of telephone did not constitute implied consent where participants unaware that call was monitored and no regulations or notices informed inmates that calls might be monitored); Jandak v. Village of Brookfield, 520 F.Supp. 815, 820 n. 5 (N.D.Ill.1981) (consent cannot be" }, { "docid": "1864793", "title": "", "text": "Schmotzer could properly take notes of his conversations with appellant and subsequently testify as to the content of their discussions. Our sole remaining question is whether the Fourth Amendment protects appellant when, instead of merely repeating what was said, the undercover agent records the conversation and is permitted to replay it at trial. Appellant concedes that only the constitutional issue is involved since electronic interceptions by a party to the conversation are expressly exempted from the warrant requirements of the Omnibus Crime Control Act. 18 U.S.C. § 2511(2)(c). Prior to its decision in Katz, the Supreme Court consistently upheld various forms of electronic eavesdropping where one party to the intercepted conversation gave prior consent. See Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). While we agree that the trespassory concepts prevailing at the time these cases were decided have since been discredited, it does not nec essarily follow that the holdings themselves are no longer sound law. The continuing validity of Lopez, Rathbun and On Lee remains a subject of active debate. The governmental activity challenged here is most closely related to the participant monitoring discussed in the Lopez case. Both here and in Lopez a participant in the incriminating conversation secretly recorded what was said and that recording was later introduced as evidence against one of the speakers. In analyzing this factual setting, the Supreme Court found no invasion of the speaker’s Fourth Amendment guarantees: Once it is plain that [the agent] could properly testify about his conversation with Lopez, the constitutional claim relating to the recording of that conversation emerges in proper perspective. • . . [T]his case involves no “eavesdropping” whatever in any proper sense of that term. The Government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a" }, { "docid": "21898945", "title": "", "text": "one of the parties has agreed to the eavesdrop, and that a warrant should be required in such instances as it was in Katz. Their reasoning is that “[t]he crucial fact in each case is that the respective speakers did not consent to the overhearing of their statements and that the conversations were overheard by third persons uninvited by the speaker.” United States v. White, 405 F.2d 838, 843 (7 Cir.), cert. granted, 394 U.S. 957, 89 S.Ct. 1305, 22 L.Ed.2d 559 (1969). Other courts, with equal force and eloquence, have expressed the opinion that Katz’s requirement of a warrant does not apply if either party is cooperating with the law enforcement officials. The rationale underlying this view was well articulated in the dissent of Chief Judge Castle in White: Unlike Katz, the instant case involves not a search and seizure, but a misplaced confidence — not surreptitious eavesdropping, but merely the obtaining of evidence of a conversation in which the Government, through its informer, was a participant. See Lopez v. United. States, 373 U.S. 427, 439, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). Had the person on the other end of the telephone line in Katz allowed a Government agent to listen in on the conversation, there would have been no constitutional violation. Rathbun v. United States, 355 U.S. 107, 111, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); United States v. Williams, 311 F.2d 721, 725 (7th Cir. 1963), cert. den. 374 U.S. 812, 83 S.Ct. 1703, 10 L.Ed.2d 1035 (1963). Thus, once the conversation is deprived of its private character through the consent of one of the parties thereto, the Fourth Amendment, not having prohibited the initial exposure, does not prohibit the introduction into evidence of the conversation as transmitted or recorded. * * * Thus, any expectation, by defendant, of privacy, when the person to whom the defendant is speaking consents to exposure of the conversation is not reasonable and therefore not protected by the Fourth Amendment. 405 F.2d at 850. This debate is likely to remain unresolved until the Supreme Court furnishes additional guidance. In this" }, { "docid": "22989419", "title": "", "text": "18 U.S.C. § 2511. We note at the outset the well-settled principle that there is no interest protectible by the Fourth Amendment in those situations in which one party to a conversation reposes a trust or confidence in the other party who is actually an undisclosed government agent or informant. E. g., Haifa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). Simply put, no legitimate Fourth Amendment interest is involved in such situations, for that Amendment affords no protection to “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Id. at 302, 87 S.Ct. at 413. Nor is the Fourth Amendment violated because the undisclosed agent simultaneously records the conversation with an electronic recording device on his person, Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), or because the conversation is electronically transmitted by the undisclosed agent to a remote place where it is overheard by other agents and/or recorded. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). Evidence in the form of tape recordings of such conversations are generally admissible where one party to the conversation consents to the electronic recording. Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); United States v. Bastone, 526 F.2d 971 (7th Cir. 1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2172, 48 L.Ed.2d 797 (1976); United States v. Martin, 372 F.2d 63 (7th Cir. 1967); cert. denied, 387 U.S. 919, 87 S.Ct. 2033, 18 L.Ed.2d 972 (1967). There is no doubt from the record that Carpentier voluntarily consented to the recording of his conversations with Walker. Further, Walker’s contention that his Fifth Amendment rights were violated since he should have been made aware of his rights prior to making any statement is of no avail. Advice of rights is required in custodial situations where the inherent pressures to speak in the face of governmental authority are" }, { "docid": "1864792", "title": "", "text": "a government agent regularly communicating with the authorities. [The Fourth Amendment] affords no protection to “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Hoffa v. United States, at 302, 87 S.Ct. at 413. No warrant to “search and seize” is required in such circumstances. We conclude that appellant’s disclosures to Agent Schmotzer during the telephone conversation of September 12, 1973 which connected appellant to the September 1 sale were not protected by the Fourth Amendment. Conversation # 2, linking appellant to the attempted sale of September 28. On September 28, 1973, the same date as the attempted sale, appellant again spoke with undercover Agent Schmotzer by telephone. Acting without a warrant, Agent Schmotzer successfully recorded the conversation during which appellant identified himself as the source of supply for the methamphetamine to be sold later that day. In addition to Agent Schmotzer’s testimony, the recording itself was played at trial, both over appellant’s objection. In considering the admissibility of “conversation # 1,” we concluded that Agent Schmotzer could properly take notes of his conversations with appellant and subsequently testify as to the content of their discussions. Our sole remaining question is whether the Fourth Amendment protects appellant when, instead of merely repeating what was said, the undercover agent records the conversation and is permitted to replay it at trial. Appellant concedes that only the constitutional issue is involved since electronic interceptions by a party to the conversation are expressly exempted from the warrant requirements of the Omnibus Crime Control Act. 18 U.S.C. § 2511(2)(c). Prior to its decision in Katz, the Supreme Court consistently upheld various forms of electronic eavesdropping where one party to the intercepted conversation gave prior consent. See Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). While we agree that the trespassory concepts prevailing at the time these cases were decided have since" }, { "docid": "16916474", "title": "", "text": "surrounding circumstances indicating that the [party] knowingly agreed to the surveillance.’” Griggs-Ryan, 904 F.2d at 117 (quoting United States v. Amen, 831 F.2d 373, 378 (2d Cir.1987)). The key question in such an inquiry obviously is whether parties were given sufficient notice. Compare Griggs-Ryan, 904 F.2d at 118 (implied consent where prison inmate was expressly informed that incoming calls were being monitored), with Campiti v. Walonis, 611 F.2d 387, 393 (1st Cir.1979) (no implied consent where regulations did not inform inmates of monitoring). Without actual notice, consent can only be implied when “[t]he surrounding circumstances [ ] convincingly show that the party knew about and consented to the interception.” United States v. Lanoue, 71 F.3d 966, 981 (1st Cir.1995) (emphasis added). The government may be able to establish that Berry was aware that the Operations Center had the capacity to monitor calls. But appellees have introduced no evidence that either he or Tamposi was told that these specific conversations would be monitored. Nor do we think that the circumstances surrounding these conversations remotely suggest that Berry or Tamposi knew about the interceptions. (Recall that the Operation Center’s guidelines explicitly directed Watch Officers not to monitor unless the parties to the conversation so requested.) We certainly cannot conclude that an operator’s failure to inform a party that he is getting off the line normally raises a suspicion in a reasonable person’s mind that his call is being monitored. The question of implied consent thus raises a genuine issue of material fact that is not appropriately decided on summary judgment. See In re State Police Litig., 888 F.Supp. 1235, 1265 (D.Conn.1995). D. Law Enforcement Exception This defense the government asserts for the benefit of the defendants in the Office of Inspector General — not those in the Operations Center. It is argued that as law enforcement officers the former were entitled to use and disclose the contents of Berry’s conversations even had they been intercepted illegally because they neither participated in nor sponsored the interception. 18 U.S.C. § 2517 (1994) in part provides: (1) Any investigative or law enforcement officer who, by" }, { "docid": "4786932", "title": "", "text": "properly placed telephone call to an attorney is not monitored. Exhibit B to Government’s Memorandum of Law in Opposition to Defendants' Pre-trial Motions. Defendants do not dispute that they read this notice, but argue that it is “obfuscatory.” Abbamonte Jr.’s Supplemental Memorandum (II) at 9 n. 20. We disagree. Accord United States v. Rantz No. 85-40036-04, slip op. at 3, 8 (D..Kan. Sept. 30, 1985). . The inmate defendants unpersuasively urge that they received no warning other than the notice posted on the telephones, see supra note 1. But by using the telephones they did exactly what the posted notices warned of: They consented to the interception of their calls. See United States v. Rantz, supra, slip op. at 8. Even apart from the legality under Title III of the prison's telephone monitoring policy, this act of consent exempted the interception of their calls from the Act. 18 U.S.C. § 2511(2)(c); see United States v. Rantz, supra, slip op. at 8; S.Rep. No. 1097, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.Code Cong. & Admin.News 2112, 2182 (\"Consent may be express or implied.\"). But cf. Campiti v. Walonis, 611 F.2d 387, 393-94 (1st Cir.1979) (no implied consent found under the circumstances of the case); Crooker v. United States Department of Justice, supra, 497 F.Supp. at 502-03 (same). . Our finding applies with equal force to defendants’ additional contention that the prison's procedures were arbitrary and capricious." } ]

[ { "docid": "7158877", "title": "", "text": "to one count of receiving child pornography. The other counts were dismissed. With several adjustments, some up and one down, the parties agreed that Mantanes’ advisory guideline range was 210 to 262 months. The statute, however, capped the stiffest possible sentence at 240 months. The government argued for the maximum sentence; the defense for the 60-month mandatory minimum. The district judge, who noted that he “lost sleep over the case,” imposed a 210-month sentence. Today, we resolve Mantanes’ appeal from the sentence he received. Mantanes argues that the judge failed to properly consider the 18 U.S.C. § 3553(a) factors, thereby committing procedural error. Mantanes also argues, relying on United States v. Dorvee, 616 F.3d 174 (2d Cir.2010), that the guidelines for this type of crime are substantively unreasonable and the judge abused his discretion when he imposed the 210-month term. We review the claims of procedural error de novo, United States v. Corson, 579 F.3d 804, 813 (7th Cir.2009), and the sentence imposed for an abuse of discretion. Cf. United States v. Coopman, 602 F.3d 814, 819 (7th Cir.2010). A district court need not discuss all the § 3553(a) factors, but it must give them meaningful consideration. United States v. Williams, 425 F.3d 478, 480 (7th Cir.2005). Here, the judge considered many of the factors, stating at sentencing: “[Y]ou are being convicted of having the images that you had, which is 1380 images and 141 videos. And just think about that. Most people don’t have 140 of their own personal movies at home. You had 141 child pornography videos of the worst kind. And so any idea of a five-year sentence I think is ridiculous, would seriously deprecate the seriousness of this offense.... To me, that is a dangerous situation for the general public.... I have to look at these personal characteristics of you. I certainly have to deter this type of behavior.... I think this needs to be deterred. It needs to be treated. I think the public needs to be protected from these type of child pornography activities on your part which were just prolific.... And so taking" } ]

[ { "docid": "7642750", "title": "", "text": "2G2.1. According to Schuster, the guideline ought not be given the same type of consideration that district courts give to other guidelines because § 2G2.1 does not reflect the Sentencing Commission’s expertise and empirical data-gathering efforts, but instead reflects congressional commands in the form of direct legislative amendments to the Guidelines. Schuster’s argument does not account for the possibility that Congress itself may have studied the problem of child pornography. At any rate, even if a district court chose, as it may, to disagree with the policy choices that underlie a particular Guideline, it does not follow that other district courts must give less regard to that Guideline. United States v. Maulding, 627 F.3d 285, 287-88 (7th Cir.2010) (per curiam) (rejecting similar challenge to the receipt, possession, and distribution guideline); see also United States v. Huffstatler, 571 F.3d 620, 622-23 (7th Cir.2009) (per curiam). Schuster presents a more case-specific argument, contending that the district court did not adequately consider the controlling sentencing factors in 18 U.S.C. § 3553(a). It is not entirely clear whether Schuster intends to challenge the sentence as procedurally unreasonable, as substantively unreasonable, or both. We review a claim of procedural error de novo, and a challenge to the sentence’s substantive reasonableness for an abuse of discretion. United States v. Mantanes, 632 F.3d 372, 374 (7th Cir.2011). In light of the district court’s careful consideration of the § 3553(a) factors, neither claim has merit. The district court gave more than meaningful consideration of the § 3553(a) factors, and thus committed no procedural error. During its extended explanation of the sentence, the district court explained the advisory Sentencing Guidelines calculation, which pegged the total adjusted offense level at 45. The district court recognized that, because of the statutory maximum of thirty years of imprisonment, the Guidelines range was instead set by that maximum. Sentencing Tr. 43-45. The district court aired its concern with the Sentencing Guideline for possession of child pornography, USSG § 2G2.2, but noted that the court was less concerned with the severity of the Guideline that applied to Schuster, who made child pornography. Beyond the" }, { "docid": "14475608", "title": "", "text": "2010_Quarter_Report_4th.pdf. The Sentencing Commission has also stated that “[sentencing courts have ... expressed comment on the perceived severity of the child pornography [G]uidelines through increased below-guidelines variance and downward departure rates.” U.S. Sentencing Comm’n, The History of the Child Pornography Guidelines 54 (2009), available at http://www.ussc.gov/Research/ Research_Projects/Sex_Offenses/ 20091030_History_Child_Pornography_ Guidelines.pdf. While we have rejected the argument that district courts are required to sentence below the Guidelines range in cases involving U.S.S.G. § 2G2.2, we have noted that such criticism has been “gaining traction.” United States v. Huffstatler, 571 F.3d 620, 622 (7th Cir.2009); see also United States v. Maulding, 627 F.3d 285, 287-88 (7th Cir.2010). We have also held that “district judges are at liberty to reject any Guideline on policy grounds — though they must act reasonably when using that power.” United States v. Corner, 598 F.3d 411, 415 (7th Cir.2010) (en banc) (emphasis in original); see also Pape, 601 F.3d at 749. But here, Halliday did not present the district court with cases in which defendants with similar conduct received lower sentences, and does not argue that the district court was unaware of its discretion to disagree with the Guidelines as they applied to his case. Accordingly, we cannot find procedural error with respect to the application of § 3553(a)(6). And so we come to the meritorious objection. Halliday points to statements made during sentencing that he argues show reliance on an improper fact, or rather, improper speculation as to Halliday’s beliefs. Because no objection was made at sentencing, we review for plain error. A review of the sentencing transcript in this case reveals that the sentencing judge relied heavily on Halliday’s lack of remorse and his lack of truthfulness, perfectly permissible sentencing factors. See 18 U.S.C. § 3553(a)(2)(A) (including as proper factor the need “to promote respect for the law”). But it also reveals that the judge relied on the assumption that Halliday believed the crime was “victimless” and that he did not “believe any of this is criminal.” The district judge began the pronouncement of the sentence by discussing a wholly unrelated child pornography case, where the" }, { "docid": "8187392", "title": "", "text": "summarize its opinion, which was issued the next day. See United States v. Cunningham, 680 F.Supp.2d 844, 862 (N.D.Ohio 2010). The court sentenced Defendant to 121 months of imprisonment on counts one and two and 120 months of imprisonment on count three, all to be served concurrently. Defendant timely appealed, contesting numerous aspects of the district court’s sentencing procedure and the substantive basis for its sentence. Each issue is discussed below. DISCUSSION I. Procedural Reasonableness We review a district court’s sentence for abuse of discretion, “whether inside, just outside, or significantly outside the Guidelines range,” and for both procedural and substantive reasonableness. United States v. Bolds, 511 F.3d 568, 578 (6th Cir.2007). Procedural reasonableness review “begins with a robust review of the factors evaluated and the procedures employed by the district court in reaching its sentencing determination.” Id. at 578 (internal quotation omitted). Specifically, we ensure that the district court properly calculated the Guidelines range, did not treat the Guidelines as mandatory, considered the factors set out in 18 U.S.C. § 3553(a), did not select a sentenced based on clearly erroneous facts, and adequately explained its sentence. Id. at 579 (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). We review the sentencing court’s legal conclusions de novo and its findings of fact for clear error. United States v. Moon, 513 F.3d 527, 539-40 (6th Cir.2008). A. Imposition of Sentence In its opinion, the court discussed Defendant’s arguments in detail. The court first rejected Defendant’s contentions that the § 2G2.2 enhancements were unreasonable and that their frequent application in child pornography prosecutions made them unreliable. The court’s review of the United States Sentencing Commission’s implementation of statutory changes to the child pornography Guidelines assured the court that the § 2G2.2 enhancements were not unreasonable. Cunningham, 680 F.Supp.2d at 848-53. Moreover, the court explained that, even if it chose not to defer to the § 2G2.2 enhancements, “its sentence would not change.” Id. at 853. The court then applied the 18 U.S.C. § 3553(a) factors to Defendant. “In an effort to more fairly judge”" }, { "docid": "17568793", "title": "", "text": "range of 120 to 120 months to comply with the statutory maximum. The district court applied a downward variance based primarily on the relative seriousness of McManus’s offense, resulting in a sentence of 72 months’ imprisonment. II. On appeal, McManus contends that his sentence is procedurally unreasonable because the district court improperly calculated his Guideline range under U.S.S.G. § 2G2.2(b). He argues that the district court erred by applying the five-level enhancement under § 2G2.2(b)(3)(B) instead of the two-level enhancement for simple distribution under § 2G2.2(b)(3)(F). We review criminal sentences for reasonableness using an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Strieper, 666 F.3d 288, 292 (4th Cir.2012). The review proceeds in two parts. We first determine whether the district court committed any significant procedural error. Id. If the sentence is procedurally sound, we review its substantive reasonableness to determine whether in the totality of the circumstances the district court abused its discretion by concluding that the sentence satisfies the standards set out in 18 U.S.C. § 3553(a). Gall, 552 U.S. at 51, 128 S.Ct. 586. Interpretation of the Sentencing Guidelines is a question of law that we review de novo. United States v. Price, 711 F.3d 455, 458 (4th Cir.2013). “Although the sentencing guidelines are only advisory, improper calculation of a guideline range constitutes significant procedural error, making the sentence procedurally unreasonable and subject to being vacated.” United States v. Hargrove, 701 F.3d 156, 161 (4th Cir.2012). However, sentencing error is subject to harmlessness review. Sentencing “error is harmless if the resulting sentence [is] not ‘longer than that to which [the defendant] would otherwise be subject.’ ” United States v. Mehta, 594 F.3d 277, 283 (4th Cir.2010) (quoting United States v. Stokes, 261 F.3d 496, 499 (4th Cir.2001)). III. The proper manner of applying the five-level § 2G2.2(b)(3)(B) enhancement to a defendant’s use of a file-sharing program to distribute child pornography is a question of first impression in" }, { "docid": "625945", "title": "", "text": "there, the PSR recommended a two-level enhancement for possession of a firearm, see U.S.S.G. § 2Dl.l(b)(l), a two-level enhancement for use of violence, see U.S.S.G. § 2D1.1(b)(2), and a three-level adjustment for acceptance of responsibility, see U.S.S.G. § 3El.l(a)-(b). Thus, the PSR recommended a sentencing range of 70 to 87 months’ imprisonment based on a total criminal offense level of 27 and a Category I criminal history. Notably, the district court accepted the PSR’s recommendation, over the government’s objection, against applying a two-level enhancement under U.S.S.G. § 2Dl.l(b)(12) for maintaining a premises for manufacturing or storing marijuana. The district court ultimately departed from the guidelines range and imposed a sentence of 144 months’ imprisonment. II. ANALYSIS We review Ramirez-Mendoza’s sentence for reasonableness under an abuse of discretion standard. United States v. England, 604 F.3d 460, 464 (7th Cir.2010). First, we determine whether the sentencing court committed procedural error — such errors include, for example, an improperly calculated guidelines range or the failure to consider the 18 U.S.C. § 3553(a) factors. United States v. Scott, 555 F.3d 605, 608 (7th Cir.2009). If there was no procedural error, we then review the sentence for substantive reasonableness. Id. On appeal, Ramirez-Mendoza contends that the district court committed three errors in rendering an above-guidelines sentence, although we have grouped the first two for ease of analysis. First, Ramirez-Mendoza argues that the sentencing court failed to adequately address two of his arguments: (1) whether Ramirez-Mendoza was coerced into participating in the kidnapping; and (2) whether Roberto’s kidnapping was foreseeable. Second, Ramirez-Mendoza argues that the length of his sentence was substantively unreasonable. A. Procedural Error We begin with the oft-cited principle that the sentencing court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also United States v. Garcia-Oliveros, 639 F.3d 380, 381 (7th Cir.2011) (per curiam); (“A sentencing court commits procedural error by not adequately explaining its choice of sentence.”). But in applying Gall, we have carefully noted" }, { "docid": "7247983", "title": "", "text": "S.Ct. 586, 169 L.Ed.2d 445 (2007). We then review the substantive reasonableness of the sentence and reverse only when the district court’s sentence “cannot be located within the range of permissible decisions.” Cavera, 550 F.3d at 189 (internal quotation marks omitted). None of Oehne’s challenges to the procedural reasonableness of the district court’s sentence is colorable. The district court correctly found that because Oehne pled guilty to two counts which together carry a statutory maximum penalty of fifty years, the guidelines sentence was fifty years or 600 months. See U.S.S.G. § 5Gl.l(a) (“Where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence.”). Oehne does not argue that this calculation was improper. Nor does he contend that the district court improperly treated the Guidelines as mandatory, as the district court explicitly acknowledged that it was not bound by the Guidelines. In fact, the Guidelines recom mended life imprisonment. Moreover, contrary to Oehne’s suggestion on appeal and as explained further below, the district court carefully considered the factors it is required to consider pursuant to 18 U.S.C. § 3553(a). Oehne’s central challenge to the district court’s sentence, therefore, is to its substantive reasonableness. Oehne relies heavily on United States v. Dorvee, 616 F.3d 174 (2d Cir.2010), a case in which we held that a sentence of 240 months’ imprisonment for a first-time offender who pleaded guilty to distribution of child pornography was procedurally and substantively unreasonable. Id. at 188. In so doing, we observed that courts determining sentences for offenses involving child pornography must be careful not to impose sentences that do not conform with the Section 3553(a) factors. Id. at 184-88. We also noted that we were troubled by the district court’s imposition of the statutory maximum in that case because the district court (1) apparently assumed that the defendant “was likely to actually sexually assault a child, a view unsupported by the record evidence,” id. at 183; (2) offered only a “cursory explanation of its deterrence rationale,” id. at 184; and (3) incorrectly stated" }, { "docid": "22411214", "title": "", "text": "under our precedent, then the latter must be too. Indeed, to distinguish Setser on the ground that within-guidelines sentences are always constitutional but above-guidelines sentences may not be would be conclusively to presume that within-guidelines sentences are reasonable even if we ignore the judge-found facts, which would treat the guidelines as more than just purely advisory and would violate Supreme Court precedent. Moreover, aside from Setser, we have rejected Sixth Amendment challenges to sentences — albeit not challenges of the type brought here — numerous times on the ground that the sentencing court is entitled to find by a preponderance of the evidence all facts relevant to the determination of a sentence below the statutory maximum. So Hernandez’s as-applied Sixth Amendment claim must fail. v. Hernandez maintains that his sentence is proeedurally and substantively unreasonable. We review the reasonableness of a sentence for abuse of discretion, whether it is inside or outside the guidelines range. Gall, 552 U.S. at 51, 128 S.Ct. 586. We first examine the sentence for significant procedural error, such as whether it was improperly calculated under the guidelines, based on clearly erroneous facts, or not adequately explained. Id If the sentence is proeedurally sound, we review it for substantive reasonableness, based on the totality of the circumstances. Id We examine for abuse of discretion both the district court’s decision to depart upwardly from the guidelines and the extent of its departure. United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.2006). Appellate review for substantive reasonableness is “highly deferential,” because the sentencing court is in a better position to find facts and judge their import under the § 3553(a) factors with respect to a particular defendant. United States v. Key, 599 F.3d 469, 473 (5th Cir.2010), cert. denied, 2011 U.S. LEXIS 816 (U.S. Jan. 18, 2011). A. Hernandez contends the district court committed procedural error in weighing some § 3553(a) factors more heavily than others. But although courts must consider all the § 3553(a) factors, it is not possible, let alone required, that they give incommensurable factors, such as “the history and characteristics of the defendant”" }, { "docid": "11160084", "title": "", "text": "On appeal, Defendant tells us the same thing he told the district court: U.S.S.G. § 2G2.1 is flawed and any reliance thereon necessarily constitutes both procedural and substantive error. Defendant says the district court should have foregone any consideration of § 2G2.1, and sentenced him based only upon its consideration of the § 3553(a)(1) & (2) factors. To argue his point, Defendant principally relies on a government report, namely United States Sentencing Commission, Report to Congress: Federal Child Pornography Offenses (Dec. 2012), available at: http://www.ussc.gov/Legislative-and-Public-Affairs/Congressional-Testimony-and-Reports/Sex-Offense-Topics/201212-Federal-Child-Pornography-Offenses/ (visited April 1, 2014) (Commission Report), and the Second Circuit’s decision in United States v. Dorvee, 616 F.3d 174 (2d Cir.2010). A. In Dorvee, the defendant pled guilty to one count of distribution (rather than production) of child pornography. The district court sentenced him to the statutory maximum of 240-months imprisonment. On appeal, the defendant challenged both the procedural and substantive components of his sentence. The Second Circuit first held the district court committed significant procedural error by erroneously calculating the defendant’s guideline range. According to the court, this error alone warranted remand for resentencing. Notwithstanding, the court further held Defendant’s sentence was substantively unreasonable based upon the district court’s misapplication of the § 3553(a) factors. Lastly and most importantly for present purposes, the Second Circuit observed the district court’s substantive error was “compounded” because § 2G2.2 is “fundamentally different from most” guidelines: Sentencing Guidelines are typically developed by the Sentencing Commission using an empirical approach based on data about past sentencing practices. However, the Commission did not use this empirical approach in formulating the Guidelines for child pornography. Instead, at the direction of Congress, the Sentencing Commission has amended the Guidelines under § 2G2.2 several times since their introduction in 1987, each time recommending harsher penalties. Dorvee, 616 F.3d at 184 (internal citation omitted). As a result, the court explained that § 2G2.2’s sentencing enhancements “routinely result in Guidelines projections near or exceeding the statutory maximum, even in run-of-the-mill cases.” Id. at 186. The Second Circuit opined that a district court would not abuse its discretion by concluding the distribution guideline typically yields a" }, { "docid": "7642751", "title": "", "text": "intends to challenge the sentence as procedurally unreasonable, as substantively unreasonable, or both. We review a claim of procedural error de novo, and a challenge to the sentence’s substantive reasonableness for an abuse of discretion. United States v. Mantanes, 632 F.3d 372, 374 (7th Cir.2011). In light of the district court’s careful consideration of the § 3553(a) factors, neither claim has merit. The district court gave more than meaningful consideration of the § 3553(a) factors, and thus committed no procedural error. During its extended explanation of the sentence, the district court explained the advisory Sentencing Guidelines calculation, which pegged the total adjusted offense level at 45. The district court recognized that, because of the statutory maximum of thirty years of imprisonment, the Guidelines range was instead set by that maximum. Sentencing Tr. 43-45. The district court aired its concern with the Sentencing Guideline for possession of child pornography, USSG § 2G2.2, but noted that the court was less concerned with the severity of the Guideline that applied to Schuster, who made child pornography. Beyond the Guidelines calculation, the district court detailed the aggravating circumstances of the “horrific offense,” and yet discussed at length the “very good side” of Schuster. Sentencing Tr. at 41. In explaining the “good side” of Schuster, the district court considered the strong family, friend, and community support that remained firmly in Schuster’s camp, even though the supporters knew what Schuster stood convicted of. Sentencing Tr. at 41 (“It is quite amazing ... that there are so many people in this courtroom who are here to support you.”) The district court noted Schuster’s difficult childhood, his perseverence through financial struggles, and his ability to provide for his own family through steady employment. Sentencing Tr. at 45-46. Also in Schuster’s favor, the district court acknowledged that Schuster had accepted responsibility, and the court recognized Schuster’s cooperation with the Dutch law-enforcement officials who were investigating Mikelsons. Sentencing Tr. at 42. The government had put a value on that cooperation, seeking a sentence somewhere in the Guidelines-range equivalent of offense level 39, which is 262 to 327 months’ imprisonment. Sentencing" }, { "docid": "16263362", "title": "", "text": "the highest offense level found in the Guidelines Sentencing Table: 43. The Guidelines “range” for an offense level of 43 is life imprisonment. Because the statutory maximum term of imprisonment for producing child pornography is fifty years, Ahders’s Guidelines range was reduced from life imprisonment to fifty years (600 months). 18 U.S.C. § 2251(a), (e); U.S.S.G. § 5G1.1(c)(1). The district court adopted the facts and the Guidelines calculation in the PSR, and sentenced Ahders to the statutory maximum term of incarceration, fifty years, minus twenty months as credit for the time Ahders served in New York State custody between his arrest and federal sentencing. This appeal followed. DISCUSSION A. Applicable Law In general, we review sentences using a “deferential abuse-of-discretion standard.” See United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc). This standard applies “both to ‘the sentence itself and to ‘the procedures employed in arriving at the sentence.’ ” United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir.2008) (quoting United States v. Fernandez, 443 F.3d 19, 26 (2d Cir.2006)). We review the district court’s conclusions as to interpretations of the Guidelines de novo, United States v. Awan, 607 F.3d 306, 312 (2d Cir.2010), and findings of fact for clear error, United States v. Salim, 549 F.3d 67, 72 (2d Cir.2008). When reviewing a sentence, we “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, ... or failing to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We must then conduct a substantive review by evaluating “the length of the sentence imposed in light of the factors enumerated under 18 U.S.C. § 3553(a).” United States v. Villafuerte, 502 F.3d 204, 206 (2d Cir.2007). A district court must begin the sentencing process by calculating the advisory Guidelines range before proceeding to an independent, individualized consideration of the sentence to impose. Gall, 552 U.S. at 49-50, 128 S.Ct. 586; Cavera, 550 F.3d at 189. A district court must make “specific factual findings,”" }, { "docid": "7642749", "title": "", "text": "sexual interest in young boys generally, the government also presented evidence that Schuster had a sexual interest in this boy specifically. According to the boy, Schuster pulled down the boy’s pants and asked to touch the boy’s “privates.” PSR ¶ 30. The boy told Schuster “no,” but Schuster “did it anyway.” Id. The victim went to the bathroom, told Schuster he did not need help, but Schuster rubbed the boy’s penis with toilet paper when the boy was done using the bathroom. Id. Schuster argues that he was simply trying to help the boy clean up after going to the bathroom, but the boy’s description of the contact proves otherwise. Schuster’s intent and motive support the district court’s finding, and we conclude that the district court did not clearly err in finding that the photo depicted the lascivious exhibition of genitals. D. Reasonableness of the Sentence Lastly, Schuster challenges the reasonableness of the sentence. He first launches a broadside attack on the Sentencing Guideline that governs offenses involving the manufacturing of child pornography, USSG § 2G2.1. According to Schuster, the guideline ought not be given the same type of consideration that district courts give to other guidelines because § 2G2.1 does not reflect the Sentencing Commission’s expertise and empirical data-gathering efforts, but instead reflects congressional commands in the form of direct legislative amendments to the Guidelines. Schuster’s argument does not account for the possibility that Congress itself may have studied the problem of child pornography. At any rate, even if a district court chose, as it may, to disagree with the policy choices that underlie a particular Guideline, it does not follow that other district courts must give less regard to that Guideline. United States v. Maulding, 627 F.3d 285, 287-88 (7th Cir.2010) (per curiam) (rejecting similar challenge to the receipt, possession, and distribution guideline); see also United States v. Huffstatler, 571 F.3d 620, 622-23 (7th Cir.2009) (per curiam). Schuster presents a more case-specific argument, contending that the district court did not adequately consider the controlling sentencing factors in 18 U.S.C. § 3553(a). It is not entirely clear whether Schuster" }, { "docid": "4303873", "title": "", "text": "the absence of evidence to support that conclusion. Id. at 181, 183. In explaining its decision to remand, the Second Circuit observed that § 2G2.2 is “fundamentally different from most” guidelines because the Sentencing Commission, at the direction of Congress, has repeatedly amended it to dictate higher ranges rather than following the standard empirical approach used to develop other Chapter 2 guidelines. Id. at 184. The court cautioned that § 2G2.2 should be carefully applied because otherwise the guideline “can lead to unreasonable sentences that are inconsistent with what § 3553 requires.” Id. But the Second Circuit did not hold, as Maulding wants us to conclude, that virtually any application of § 2G2.2 will yield an unreasonable sentence. Maulding also cites a recent survey where 70 percent of district judges opined that the sentencing ranges for possession of child pornography are too high, 69 percent thought the ranges for receipt of child pornography are too high, and 30 percent viewed the ranges for distribution as too high. See U.S. Sentencing Comm’n, Results of Survey of United States District Judges January 2010 through March 2010, at tbl.8(2010), http://www.ussc.gov/judge_ survey/2010/judgesurvey_201006.pdf. Maulding’s premise rehashes the argument we rejected in United States v. Huffstatler, 571 F.3d 620 (7th Cir.2009) (per curiam). In that appeal the defendant argued that the child-pornography guidelines are so flawed that sentencing courts must disagree with the resulting imprisonment range, id. at 622, and here, Maulding says that imposing a prison term anywhere close to the guidelines range will result in an unreasonable sentence. In Huffstatler we acknowledged an article criticizing the child-pornography guidelines as unreliable because they are not based on study and empirical data. Id. at 622-23. We emphasized, however, that while district courts perhaps are free to sentence below the guidelines range based on a policy disagreement with the child-pornography guidelines, the defendant’s position that courts must do so was “untenable.” Id. at 623-24. The same goes here. What matters is whether the sentencing judge correctly calculated the guidelines range and evaluated the § 3553(a) factors to arrive at a reasonable sentence. Id. at 624. The district" }, { "docid": "6596028", "title": "", "text": "unreasonable for the court to agree that Meschino should be held fully culpable for possession of this particularly harmful form of child pornography. Second, Meschino argues that the enhancements under § 2G2.2 lack support in empirical data. We have recognized that the guidelines for crimes involving sexual exploitation of a minor have been criticized for being “crafted without the benefit of the Sentencing Commission’s usual empirical study” and that this criticism “has been gaining traction” in some district courts that have chosen to depart from the guidelines. United States v. Huffstatler, 571 F.3d 620, 622 (7th Cir.2009). But § 2G2.2’s “somewhat unusual provenance” in no way obligates a judge to depart downward. Rodgers, 610 F.3d at 978; see also United States v. Maulding, 627 F.3d 285, 287-88 (7th Cir.2010); Huffstatler, 571 F.3d at 624. ‘What matters is whether the sentencing judge correctly calculated the guidelines range and evaluated the § 3553(a) factors to arrive at a reasonable sentence.” Maulding, 627 F.3d at 288. The district court had no reservations about applying the guidelines in this case. The judge recognized that he was free to vary if he “severely disagree[d]” with the guidelines but found that “in this instance ... they’re quite relevant and need to be honored.” The judge considered Meschino’s abuse of his niece, his extensive volume of child pornography, the “disturbing” and “terrifying” nature of some of the images, and his bragging in chat-room conversations about sexually abusing his niece and taking pictures of children in his neighborhood and on the bus. These are serious aggravating circumstances, and it was hardly unreasonable for the judge to emphasize them in weighing the § 3553(a) factors. Meschino has not overcome the presumption that his within-guidelines sentence is reasonable. Affirmed. . Meschino contends that de novo review applies because the district court's ruling impli cated his Sixth Amendment confrontation-clause rights; we have held, however, that the confrontation clause does not apply to sentencing hearings. See United States v. Roche, 415 F.3d 614, 618 (7th Cir.2005)." }, { "docid": "12015284", "title": "", "text": "U.S.S.G. § 2G2.2(b)(4) provides a four-level enhancement “[i]f the offense involved material that portrays sadistic ... conduct.” Duane first argues that the enhancement was inappropriate because few (15) of the many (over 4,000) total images were sadistic, and because the small number suggests that Duane did not intend to possess the images. But even Duane concedes that the district court did not err as a matter of law. The commentary to § 2G2.2(b)(4) explicitly provides that whether a defendant intended to possess sadistic images is irrelevant. U.S.S.G. § 2G2.2, cmt. n. 2. Nor does § 2G2.2(b)(4) specify that its application is contingent upon any particular number of sadistic images or percentage of sadistic images in relation to other prohibited images. See United States v. Stulock, 308 F.3d 922, 926 (8th Cir.2002) (upholding four-level enhancement where among thousands of images of child pornography, three files portrayed violent images). Accordingly, the district court did not err in enhancing Duane’s offense level pursuant to U.S.S.G. § 2G2.2(b)(4). IV. Finally Duane contends that his sentence is unreasonable. Following United States v. Booker, we review sentences for reasonableness. 543 U.S. 220, 260-262, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). This review has both procedural and substantive components. See Gall v. United States — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). First, we must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the 18 U.S.G. § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence....” Id. at 597. Second, we consider the substantive reasonableness of the sentence under the abuse of discretion standard, which applies regardless of whether a sentence is inside or outside the Guidelines range. Id. Duane challenges his sentence on both procedural and substantive grounds. A. First, Duane argues that his sentence is procedurally unreasonable because the district court’s explanation did not demonstrate that it adequately considered the § 3553(a) factors or his arguments for a lesser sentence. 1. Because" }, { "docid": "22239145", "title": "", "text": "F.3d 1179, 1190 (11th Cir.2008). Then, we examine whether the sentence is substantively unreasonable under the totality of the circumstances and in light of the § 3553(a) factors. Id. When deciding upon a sentence, the district court must evaluate all of the § 3553(a) factors but can attach “great weight” to one factor over others. United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.2009) (quotation marks omitted). “[A] district court has ‘considerable discretion’ in deciding whether the § 3553(a) factors justify a variance and the extent of one that is appropriate.” Id. at 1238 (quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.2008)). We give that decision “due deference” because the district court has an “institutional advantage” in making sentencing determinations. Id. (quotation marks omitted); see also United States v. Alfaro-Moncada, 607 F.3d 720, 735 (11th Cir.2010). “We may vacate a sentence only ‘if we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.’ ” Id. (quoting Shaw, 560 F.3d at 1238) (additional quotation marks omitted). On appeal, the party challenging the sentence bears the burden to show that it is unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.2010). III. PROCEDURAL REASONABLENESS A. Relevant Statutory and Guidelines Provisions Pursuant to 18 U.S.C. § 2252(a)(2), it is unlawful to “knowingly receive!], or distribute!], any visual depiction [of child pornography] ... by any means including by computer,” or to “knowingly reproduce! ] any [such] visual depiction for distribution.” 18 U.S.C. § 2252(a)(2) (emphasis added). Relevant here, the sentencing guidelines for a violation of § 2252(a)(2) call for a base offense level of 22. U.S.S.G. § 2G2.2(a)(2). And, the guidelines call for a two-level increase if the defendant distributed child pornography. Id. § 2G2.2(b)(3)(F). B. Cubero’s Double Counting Argument Cubero asserts that “ ‘distribution’ is an essential element of [Cubero’s] § 2252(a)(2) offense” and, thus, was “taken into account in calculating Cubero’s" }, { "docid": "4303874", "title": "", "text": "United States District Judges January 2010 through March 2010, at tbl.8(2010), http://www.ussc.gov/judge_ survey/2010/judgesurvey_201006.pdf. Maulding’s premise rehashes the argument we rejected in United States v. Huffstatler, 571 F.3d 620 (7th Cir.2009) (per curiam). In that appeal the defendant argued that the child-pornography guidelines are so flawed that sentencing courts must disagree with the resulting imprisonment range, id. at 622, and here, Maulding says that imposing a prison term anywhere close to the guidelines range will result in an unreasonable sentence. In Huffstatler we acknowledged an article criticizing the child-pornography guidelines as unreliable because they are not based on study and empirical data. Id. at 622-23. We emphasized, however, that while district courts perhaps are free to sentence below the guidelines range based on a policy disagreement with the child-pornography guidelines, the defendant’s position that courts must do so was “untenable.” Id. at 623-24. The same goes here. What matters is whether the sentencing judge correctly calculated the guidelines range and evaluated the § 3553(a) factors to arrive at a reasonable sentence. Id. at 624. The district court correctly calculated the guidelines range, acknowledged that the guidelines are advisory, agreed with Maulding that several mitigating factors favored him, and then imposed a below-range sentence which the court deemed warranted in light of the § 3553(a) factors. Still, says Maulding, § 2G2.2 leaves no room to differentiate between the least- and most-serious offenders in child-pornography cases because the imprisonment range will almost always be above the statutory maximum. He contends that the ranges are so high that all sentences are concentrated at or near the statutory maximum and that this result violates the principle that defendants who are convicted of dissimilar conduct should not receive similar sentences, see Gall v. United States, 552 U.S. 38, 55, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). As an example, Maulding cites a recent case where another defendant who pleaded guilty to receiving child pornography was also sentenced to 240 months’ imprisonment even though the underlying facts were far more egregious. See United States v. Nurek, 578 F.3d 618 (7th Cir.2009). In Nurek, the defendant was a" }, { "docid": "23202315", "title": "", "text": "five-year mandatory minimum would be “unfair and unreasonable.” Id. at 411-12. The government appealed, and Grober cross-appealed. The government argues that the District Court committed procedural error by not adequately addressing its arguments before rejecting the sentencing range § 2G2.2 recommended for Grober. Importantly, the government does not argue that the Court lacked the authority to disagree with § 2G2.2 on policy grounds or that the sentence the Court imposed is substantively unreasonable. Grober argues that the District Court incorrectly believed that it was required to impose the statutory mandatory minimum sentence. II. Jurisdiction and Standard of Review The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We review sentences for abuse of discretion, and review them for both procedural and substantive reasonableness. United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). Where a claim of procedural unreasonableness has been made, we must ensure “that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Id. (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). For a sentence to be procedurally reasonable, a district court must demonstrate “meaningful consideration of the relevant statutory factors and the exercise of independent judgment,” United States v. Grier, 475 F.3d 556, 571-72 (3d Cir.2007) (en banc), and “respond to colorable arguments with a factual basis in the record,” United States v. Merced, 603 F.3d 203, 224 (3d Cir.2010). A major variance from the Guidelines requires a more significant justification than a minor one. Gall, 552 U.S. at 50, 128 S.Ct. 586. We will affirm a procedurally sound sentence as substantively reasonable “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons" }, { "docid": "14475607", "title": "", "text": "v. Diaz, 720 F.Supp.2d 1039 (E.D.Wis.2010) (collecting cases); see also, United States v. Dorvee, 616 F.3d 174, 188 (2d Cir.2010); United States v. Grober, 624 F.3d 592, 609-10 (3d Cir.2010) (finding no procedural error in district court’s rejection of Section 2G.2.2). As we have noted in the past, seventy percent of district judges surveyed in 2010 indicated that the Guidelines ranges for possession of child pornography are too high, and sixty-nine percent consider the ranges for receipt of child pornography too high. United States v. Maulding, 627 F.3d 285, 287 (7th Cir.2010) (citing U.S. Sentencing Comm’n, Results of Survey of United States District Judges January 2010 through March 2010, at tbl.8 (2010), http://www.ussc.gov/Research/Research_ Projects/Surveys/20100608_Judge_Survey. pdf). The Sentencing Commission has reported that in 2010, district judges issued below-Guidelines sentences in forty-four percent of the cases governed by U.S.S.G. § 2G2.2, the Guideline for receipt and possession, compared with 17.9 percent of all cases. See U.S. Sentencing Comm’n, Final Quarterly Data Report: Fiscal Year 2010, at 14 tbl.5 & 1 tbl.l (2010), available at http://www.ussc.gov/Data_and_ Statistics/FederaLSentencing_Statistics/ Quarterly_Sentencing_Updates/USSC_ 2010_Quarter_Report_4th.pdf. The Sentencing Commission has also stated that “[sentencing courts have ... expressed comment on the perceived severity of the child pornography [G]uidelines through increased below-guidelines variance and downward departure rates.” U.S. Sentencing Comm’n, The History of the Child Pornography Guidelines 54 (2009), available at http://www.ussc.gov/Research/ Research_Projects/Sex_Offenses/ 20091030_History_Child_Pornography_ Guidelines.pdf. While we have rejected the argument that district courts are required to sentence below the Guidelines range in cases involving U.S.S.G. § 2G2.2, we have noted that such criticism has been “gaining traction.” United States v. Huffstatler, 571 F.3d 620, 622 (7th Cir.2009); see also United States v. Maulding, 627 F.3d 285, 287-88 (7th Cir.2010). We have also held that “district judges are at liberty to reject any Guideline on policy grounds — though they must act reasonably when using that power.” United States v. Corner, 598 F.3d 411, 415 (7th Cir.2010) (en banc) (emphasis in original); see also Pape, 601 F.3d at 749. But here, Halliday did not present the district court with cases in which defendants with similar conduct received lower sentences, and does" }, { "docid": "6596027", "title": "", "text": "v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Nurek, 578 F.3d 618, 626 (7th Cir.2009). Meschino contends that his 120-month sentence on the possession count is substantively unreasonable for two reasons. First, he claims that the four-level enhancement he received under § 2G2.2(b)(4) for possessing material portraying sadistic or masochistic conduct produced a guidelines range that was too harsh under the circumstances because he never specifically sought images of this nature. He says he “traded with unknown persons and had no idea what type of images he would receive until he opened them.” The Sentencing Commission deems this irrelevant. See U.S.S.G. § 2G2.2(b)(4) cmt. n. 2 (The enhancement applies “regardless of whether the defendant specifically intended to possess, access with intent to view, receive, or distribute such materials.”). Accordingly, the district court quite properly found that even if Meschino did not actively seek such material, the enhancement applied because he “looked at it, possessed it, and stored it, hid it, and kept it.” It was not unreasonable for the court to agree that Meschino should be held fully culpable for possession of this particularly harmful form of child pornography. Second, Meschino argues that the enhancements under § 2G2.2 lack support in empirical data. We have recognized that the guidelines for crimes involving sexual exploitation of a minor have been criticized for being “crafted without the benefit of the Sentencing Commission’s usual empirical study” and that this criticism “has been gaining traction” in some district courts that have chosen to depart from the guidelines. United States v. Huffstatler, 571 F.3d 620, 622 (7th Cir.2009). But § 2G2.2’s “somewhat unusual provenance” in no way obligates a judge to depart downward. Rodgers, 610 F.3d at 978; see also United States v. Maulding, 627 F.3d 285, 287-88 (7th Cir.2010); Huffstatler, 571 F.3d at 624. ‘What matters is whether the sentencing judge correctly calculated the guidelines range and evaluated the § 3553(a) factors to arrive at a reasonable sentence.” Maulding, 627 F.3d at 288. The district court had no reservations about applying the guidelines in this" }, { "docid": "4275379", "title": "", "text": "present case calls on us to apply the familiar framework for reviewing district court sentencing decisions. We first consider whether the district court committed any procedural error, and then consider whether the sentence was substantively unreasonable. See United States v. Hall, 608 F.3d 340, 346 (7th Cir.2010). As to the procedural inquiry, we ask whether the sentencing court erred by “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors ... or failing to adequately explain the chosen sentence— including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (U.S.2007). But recent case law indicates that the sentencing court need not frame its explanation of a sentence in terms of a departure from the guidelines range, but may instead focus on the appropriateness of the sentence under § 3553. United States v. Bartlett, 567 F.3d 901, 909 (7th Cir.2009) (citing Nelson v. United States, 555 U.S. 350, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009)); see also United States v. Vaughn, 614 F.3d 412, 415 (7th Cir.2010). Questions of procedural error are reviewed de novo. See Hall, 608 F.3d at 346. We review the substantive reasonableness of a sentence for an abuse of discretion, even when it is outside the guidelines. See Gall, 552 U.S. at 51, 128 S.Ct. 586. There is no presumption of unreasonableness merely because a sentence is outside of the suggested guidelines range but rather we ordinarily give the sentencing court deference if “the factors in 18 U.S.C. § 3553(a), as a whole, justify the extent of the variance from the guidelines.” United States v. Wise, 556 F.3d 629, 632-33 (7th Cir.2009). Under this analysis, “[t]he farther the judge’s sentence departs from the guidelines ... the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed.” United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005). Again, however, after Bartlett a" } ]

[ { "docid": "22038575", "title": "", "text": "Justice Stevens delivered the opinion of the Court. This case presents the question whether a federal court applying a state statute of limitations to an inmate’s federal civil rights action should give effect to the State’s provision tolling the limitations period for prisoners. Petitioner is incarcerated in a Michigan state prison. In 1986 he filed a pro se complaint pursuant to 42 U. S. C. § 1983, alleging that for approximately 180 days in 1980 and 1981 he had been held in solitary confinement in violation of his federal constitutional rights. The District Court sua sponte dismissed the complaint because it had been filed after the expiration of Michigan’s 3-year statutory limitations period for personal injury actions. The Court of Appeals affirmed. 836 F. 2d 549 (CA6 1987). Following its 3-day-old decision in Higley v. Michigan Department of Corrections, 835 F. 2d 623 (CA6 1987), the court refused to apply a Michigan statute that suspends limitations periods for persons under a legal disability until one year after the disability has been removed. Because that holding appeared to conflict with our decision in Board of Regents, University of New York v. Tomanio, 446 U. S. 478 (1980), we granted certiorari. 488 U. S. 887 (1988). We now reverse. In enacting 42 U. S. C. § 1988 Congress determined that gaps in federal civil rights acts should be filled by state law, as long as that law is not inconsistent with federal law. See Burnett v. Grattan, 468 U. S. 42, 47-48 (1984). Because no federal statute of limitations governs, federal courts routinely measure the timeliness of federal civil rights suits by state law. Id., at 49; Chardon v. Fumero Soto, 462 U. S. 650, 655-656 (1983); Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 464 (1975). This tradition of borrowing analogous limitations statutes, cf. O'Sullivan v. Felix, 233 U. S. 318 (1914), is based on a congressional decision to defer to “the State’s judgment on the proper balance between the policies of repose and the substantive policies of enforcement embodied in the state cause of action.” Wilson v. Garcia," } ]

[ { "docid": "23210575", "title": "", "text": "a complaint filed by a prison official. Wilson was convicted on September 23, 1987 and sentenced to ten years on November 5, 1987. The Illinois Supreme Court denied review of the case on December 5, 1989. Applying Illinois’ two-year statute of limitations, the district court found Wilson’s complaint untimely. It noted that the claims here accrued, at the latest, on November 5,1987 (the date of the sentencing). Therefore the limitations period expired on November 5, 1989. According to district court records, however, plaintiff did not file his complaint until November 14,1989, nine days too late. The court did not consider whether the limitations period had been tolled or whether the complaint might actually have been received before November 5, 1989. ANALYSIS A. The Applicable Statute of Limitations In Wilson v. Garcia, 471 U.S. 261, 279, 105 S.Ct. 1938, 1948-49, 85 L.Ed.2d 254 (1985), the Supreme Court held that actions under § 1983 should be characterized as personal injury claims, and, as such, were governed by the personal injury statute of limitations in the state where the alleged injury occurred. In applying these state limitations statutes, federal courts also follow the tolling laws of the state where the injury occurred. Hardin v. Straub, 490 U.S. 536, 109 S.Ct. 1998, 2003, 104 L.Ed.2d 582 (1989); Board of Regents, University of New York v. Tomanio, 446 U.S. 478, 484, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440 (1988). Federal law, however, determines the accrual of a claim. Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir.1989); Saldivar v. Cadena, 622 F.Supp. 949, 956 n. 2 (W.D.Wis.1985). Generally, a claim accrues when the plaintiff knows or has reason to know of the injury giving rise to the cause of action. Torres v. Superintendent of Police of Puerto Rico, 893 F.2d 404, 407 (1st Cir.1990). Civil rights claims, therefore, accrue when the plaintiff knows or should know that his or her constitutional rights have been violated. See Barrett v. United States, 689 F.2d 324 (2d Cir.), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983); Rinehart v. Locke, 454 F.2d 313, 315 (7th" }, { "docid": "23608938", "title": "", "text": "not time barred. Accordingly, we AFFIRM the district court’s order granting summary judgment on the false accusation and arrest claim and the malicious prosecution claim. However, we REVERSE the district court’s order granting summary judgment on the remaining claims and REMAND for further proceedings not inconsistent with this opinion. . That section provides: Actions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right of action accrues, and except for actions for injuries to the person involving loss of consortium, which shall be brought within four years after the right of action accrues. O.C.G.A. § 9-3-33. . Nor can they. Although Section 1983 does not contain a specific statute of limitations, 42 U.S. C.A. § 1988 directs courts in Section 1983 actions to apply the most appropriate and analogous state statute of limitations. Burnett v. Grattan, 468 U.S. 42, 47-48, 104 S.Ct. 2924, 2928, 82 L.Ed.2d 36 (1984); Board of Regents v. Tomanio, 446 U.S. 478, 483-86, 100 S.Ct. 1790, 1794-96, 64 L.Ed.2d 440 (1980). In Wilson v. Garcia, 471 U.S. 261, 276-79, 105 S.Ct. 1938, 1947-49, 85 L.Ed.2d 254 (1985), the Supreme Court interpreted the dictates of Section 1988 as requiring in all Section 1983 actions the application of the state limitations statute governing \"personal injury” claims. Thus, under Wilson, the proper limitations period for all Section 1983 actions in Georgia is the two-year limitations period set forth in O.C.G.A. § 9-3-33. Williams v. City of Atlanta, 794 F.2d 624, 626 (11th Cir.1986). Furthermore, in Williams, this Court determined that Wilson is to be applied retroactively, at least in Section 1983 cases arising out of Georgia. Id. at 625-28. See abo Jones v. Preuit & Mauldin, 763 F.2d 1250, 1253 n. 2 (11th Cir.1985), cert. denied, _ U.S. _, 106 S.Ct. 893, 88 L.Ed.2d 926 (1986) (applying Wibon retroactively in Alabama Section 1983 case where parties did not dispute its retroactivity). Therefore, this action is barred unless commenced within two years of its accrual. . In" }, { "docid": "2100200", "title": "", "text": "1, 1987, Harding filed a complaint against the Deputies. Count 1 of the complaint alleged that the Deputies violated 42 U.S.C. § 1983 by using excessive force and interfering with Harding’s First Amendment rights. Count 2 alleged conspiracy to do the same. The district court held that Harding’s claims were barred by the statute of limitations and granted the Deputies’ motion for summary judgment. That holding is the subject of this appeal. A dismissal on statute of limitations grounds presents a question of law reviewed de novo. Donoghue v. Orange County, 848 F.2d 926, 929 (9th Cir.1988). II. Harding’s claims are based on the Civil Rights Act, 42 U.S.C. § 1983. State law determines the statute of limitations for claims brought under 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). The Court in Wilson held the statute of limitations for all section 1983 claims to be the forum state’s statute of limitations for personal injury torts. Id. at 269, 105 S.Ct. at 1943. In California, this period is one year. Cal.Civ.Proc.Code § 340(3) (West Supp.1989). Harding’s claims arose on October 10, 1984. Harding filed his section 1983 claims on May 1, 1987, more than two years after his claims arose, but within one year of his acquittal on the criminal charges. Unless Harding’s claims can be saved by a tolling rule, they are time-barred by the statute of limitations. We look to state law to determine the application of tolling doctrines. Board of Regents v. Tomanio, 446 U.S. 478, 486-87, 100 S.Ct. 1790, 1796-97, 64 L.Ed.2d 440 (1980). Harding contends that the statute of limitations was tolled pursuant to Cal. Gov’t Code § 945.3 (West Supp.1989). This section prevents civil actions against peace officers from being filed while criminal charges are pending against the potential plaintiff. The section also tolls the statute of limitations on the civil actions until the criminal charges are resolved. Relying on Mangels v. City of Orange, 678 F.Supp. 1452 (C.D.Cal.1988), which held both parts of section 945.3 inapplicable to section 1983 claims, the district court found" }, { "docid": "4044749", "title": "", "text": "L.Ed.2d 613 (1990), Alternatively, Farrell asks us to find that his amended complaint against McDonough is timely either because the limitations period was tolled under Ill.Rev. Stat. ch. 110, 1113-211, or because his amended claim relates back to the date his original complaint was filed. See Fed. R.Civ.P. 15(c). We address Farrell’s arguments in turn, but find none persuasive. A. Section 1983 does not contain a federal statute of limitations. Consequently, prior to Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), the Supreme Court instructed lower courts to apply the state statute of limitations “most analogous” to the particular section 1983 action being litigated. Board of Regents v. Tomanio, 446 U.S. 478, 488, 100 S.Ct. 1790, 1797, 64 L.Ed.2d 440 (1980). In Wilson, however, the Court abandoned this case-by-ease approach and directed lower courts to conduct the section 1983 statute of limitations inquiry at a higher level of abstraction. Wilson teaches that all section 1983 actions are best characterized as personal injury actions and that courts should therefore apply a state’s personal injury statute of limitations to all section 1983 actions arising in that state. Id. at 280. Revisiting this topic in Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), the Supreme Court further held that courts should choose a general personal injury statute over one applicable only to specified intentional torts in states that provide both choices. Id. 109 S.Ct. at 581-82. Additionally, both Wilson and Owens stressed that courts should not resort to a residual or “catch-all” statute in the first instance, but only where state law does not provide a general personal injury statute. Wilson, 471 U.S. at 278, 105 S.Ct. at 1948; Owens, 109 S.Ct. at 582 n. 12. In Kalimara, we relied on Wilson and Owens to hold explicitly in Gray that Wisconsin’s six-year statute of limitations for injuries to personal rights applies to section 1988 actions arising there. We have since reaffirmed both Kalimara, see Pearson v. Gatto, 933 F.2d 521, 525 n. 3 (7th Cir.1991), and Gray, see Kuemmerlein v. Board of Education," }, { "docid": "22078768", "title": "", "text": "establish the presence of a trialworthy issue. See Rivera-Muriente, 959 F.2d at 352. If the plaintiff fails to shoulder this burden, then the court may adjudicate the motion as a matter of law. In an appropriate case, Rule 56 can be employed to determine the applicability of a statutory time bar to a particular set of facts. See id.; see also Jensen v. Frank, 912 F.2d 517, 520 (1st Cir.1990). B. The Limitations Period Local law determines the limitations period for section 1983 claims. See Wilson v. Garcia, 471 U.S. 261, 269, 105 S.Ct. 1938, 1943, 85 L.Ed.2d 254 (1985). As a general rule, federal courts borrow the limitations period for personal injury actions and apply that period to section 1983 claims. See id. at 276, 105 S.Ct. at 1947. In Puerto Rico, the applicable limitations period is one year. See P.R.Laws Ann. tit. 31, § 5298(2) (1991); see also Rivera-Muriente, 959 F.2d at 353; Rodriguez Narvaez v. Nazario, 895 F.2d 38, 42 (1st Cir.1990); Torres v. Superintendent of Police, 893 F.2d 404, 406 (1st Cir.1990). In cases brought pursuant to section 1983, an inquiring court must consult federal law in order to fix the point in time from which the limitations period begins to accrue. See Rivera-Muriente, 959 F.2d at 353; Street v. Vose, 936 F.2d 38, 40 (1st Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 948, 117 L.Ed.2d 117 (1992). Under the federal rule, accrual commences when a plaintiff knows, or has reason to know, of the discriminatory act that underpins his cause of action. See Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29, 70 L.Ed.2d 6 (1981); Delaware State Coll. v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980); Rivera-Muriente, 959 F.2d at 353. III. Analysis The issue on appeal is whether the district court appropriately entered summary judgment on the ground that appellant sued beyond the one-year limitations period. Since appellant commenced his action on December 21, 1990, our inquiry reduces to whether appellant’s cause of action accrued more than one year before that date. The defendants" }, { "docid": "9344664", "title": "", "text": "resolve. Similarly, with respect to the applicability of equitable estoppel, the district court will have to evaluate Mr. Smith’s contention that Officer Ewers affirmatively misled him— rather than simply denied the underlying allegations — in his deposition. Appellant’s Br. at 3-4; see Cada, 920 F.2d at 451. Conclusion Although Mr. Smith was unaware of the identity of the defendants, he knew of his cause of action; consequently, Illinois’ fraudulent concealment statute does not apply. Nevertheless, the district court failed to give sufficient consideration to the argument that the two-year statute of limitations was equitably tolled, or that the defendants are equitably estopped from raising the statute of limitations as a defense. For these reasons, the judgment of the district court is affirmed in part and vacated in part, and this case is remanded to the district court for further proceedings in conformity with this opinion. Each party shall bear its own costs in this court. Affirmed in part, Vacated in part, and Remanded. . Under Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 1947, 85 L.Ed.2d 254 (1985), and Anton v. Lehpamer, 787 F.2d 1141, 1142 (7th Cir.1986), the applicable limitations period for claims brought under 42 U.S.C. § 1983 in federal court in Illinois is Illinois’ two-year statute of limitations for personal injury actions. Ill.Ann. Stat. ch. 110, ¶ 13-202 (Smith-Hurd 1984). The same state statute of limitations is borrowed for actions brought under 42 U.S.C. § 1981. Goodman v. Lukens Steel Co., 482 U.S. 656, 660-64, 107 S.Ct. 2617, 2620-22, 96 L.Ed.2d 572 (1987); Bailey v. Northern Indiana Pub. Serv. Co., 910 F.2d 406, 412 n. 5 (7th Cir.1990). The Supreme Court has held that when a federal court adopts a state statute of limitations, the court must also adopt the state rules tolling that statute of limitations unless the rules are inconsistent with the Constitution and laws of the United States. Board of Regents v. Tomanio, 446 U.S. 478, 483-86, 100 S.Ct. 1790, 1794-96, 64 L.Ed.2d 440 (1980); Johnson v. Railway Express Agency, 421 U.S. 454, 460-66, 95 S.Ct. 1716, 1720-23, 44 L.Ed.2d 295 (1975)." }, { "docid": "4490022", "title": "", "text": "cause, that he was not taken before a magistrate, and that he was denied counsel. Mr. Jones, who was subsequently convicted of first degree murder and sentenced to a term of imprisonment for life (as well as two years on a firearms conviction), filed his complaint on February 12, 1986. The defendants asserted that Mr. Jones’ claims were barred by the three-year statute of limitations and by the doctrine of res judi- cata. Upon a magistrate’s recommendation, the district court dismissed the complaint as untimely without reaching the res judicata issue. It is well established that the appropriate statute of limitations for actions under § 1983 is the statute of limitations applicable to personal injury actions. Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 1947, 85 L.Ed.2d 254 (1985). Michigan has a three-year statute of limitations for personal injury claims. Mich. Comp. Laws § 600.5805(8). Mr. Jones commenced his action more than five years after the events on which his claims are based. The claims are therefore barred unless the statute was tolled. Mr. Jones relies on Mich. Comp. Laws § 600.5851(1), which provides: “[I]f the person first entitled to ... bring an action is ... imprisoned at the time the claim accrues, the person ... shall have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run.” State tolling statutes such as this apply to § 1983 actions unless the result is inconsistent with federal law or policy. Board of Regents v. Tomanio, 446 U.S. 478, 488-92, 100 S.Ct. 1790, 1797-99, 64 L.Ed.2d 440 (1980). The magistrate found that § 600.5851(1) did not apply to Mr. Jones’s claims because: (1) imprisonment is not a disability under federal law, Higley v. Michigan Dept. of Corrections, 835 F.2d 623, 626 (6th Cir.1987); and (2) the cause of action accrued before Mr. Jones was imprisoned. The district court adopted the magistrate’s report and added further discussion on the latter point. The Supreme Court has since rejected Higley and held specifically that Mich. Comp. Laws" }, { "docid": "203097", "title": "", "text": "and that, under federal law, his claim accrued only upon the District’s satisfaction of its disclosure obligations. Before addressing his arguments, we briefly lay out the general framework governing claim accrual and the limitations period applicable in a section 1983 action. Section 1983 sets no limitations period. Consistent with “settled practice,” Wilson v. Garcia, 471 U.S. 261, 266, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), abrogated on other grounds as recognized by Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004), 42 U.S.C. § 1988(a) adopts the applicable state statute of limitations for a section 1983 action so long as such adoption “is not ‘inconsistent with the Constitution and laws of the United States.’ ” Burnett v. Grattan, 468 U.S. 42, 48, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984) (quoting 42 U.S.C. § 1988(a)). The United States Supreme Court has determined that the appropriate statute of limitations for a claim brought under section 1983 “is that which the State provides for personal-injury torts.” Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). “[Wjhere state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions.” Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). The District has two statutes of limitations applicable to tort claims: a one-year statute governing enumerated intentional torts, D.C.Code § 12-301(4), and a three-year residual statute covering all other tort actions. Id. § 12-301(8). We apply the three-year residual statute of limitations to a section 1983 claim. Singletary v. District of Columbia, 351 F.3d 519, 529 n. 11 (D.C.Cir.2003). A federal court considering a section 1983 claim also applies the tolling rules of the jurisdiction from which it draws the limitations period so long as those rules are not “inconsistent with the policies underlying § 1983.” Bd. of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 487, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980) (quotation marks omitted). This rule" }, { "docid": "2908926", "title": "", "text": "barred by the applicable statute of limitations. In his brief, defendant claims to have personally examined plaintiff on November 2, 1968 although no supporting affidavit accompanies the brief. Nor is it known when Dr. Flicker’s “certificate or written statement” became part of a Class C detention application which was allegedly made by someone other than Dr. Flicker. A. Statute of Limitations Plaintiff contends that his rights under 42 U.S.C. §§ 1983 and 1985 have been violated. Defendant argues that plaintiff’s complaint is time barred. There is no federal limitations period governing these two sections of the civil rights laws. Instead the courts “borrow” the state law of limitations governing an analogous cause of action. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975). In Garcia v. Wilson, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) the Supreme Court held that claims under 42 U.S.C. § 1983 are best characterized as personal injuries and so should be governed by the appropriate state statute of limitations. In New Jersey the statute of limitations in personal injury actions is two years, N.J.S.A. 2A:14-2. Since plaintiff’s injury occurred in 1968 his cause of action would be barred unless he can allege that the statute was tolled or that his cause of action did not accrue until within two years of filing this action. State law governs the tolling of the statute, unless state law is inconsistent with the purposes behind the civil rights acts. Board of Regents v. Tomanio, 446 U.S. 478, 484-86, 100 S.Ct. 1790, 1795-96, 64 L.Ed.2d 440 (1980), Aitchison v. Raffiani, 708 F.2d 96, 101 (3d Cir.1983). However, the accrual of a civil rights action is a question of federal law. Sandutch v. Muroski, 684 F.2d 252, 254 (3rd Cir.1982) (per curiam). The Third Circuit has held that a civil rights cause of action accrues when a plaintiff knows or has reason to know of the injury that is the basis of his action. Id. A discovery rule is applied by the Supreme Court, requiring that plaintiff must be aware" }, { "docid": "21443878", "title": "", "text": "that the last alleged violation occurred on September 28, 1992. The complaint therefore had to be filed by September 29, 1993. The eourt agreed with the defendants and found that the plaintiff had not tolled the statute of limitations on either of two bases: (1) the plaintiff failed to seek the same remedies in the district eourt as it had before the agency, and therefore failed to satisfy the requirements of the Puerto Rico statute governing the tolling of the statute of limitations through extrajudicial claims, and (2) the plaintiff failed to establish that the statute of limitations was equitably tolled. The eourt implicitly found that the plaintiff was neither excusably ignorant of the statute of limitations nor actively misled by OCFI. The court concluded that the administrative order was final and unappeala-ble. The plaintiff argues on appeal that the ninety day review period under section 2165 is waivable and was tolled by OCFI. The plaintiff also asserts that the defendants are equitably estopped from asserting the statute of limitations as a defense in this case. Finally, the plaintiff asserts that summary judgment is generally inapplicable in actions raising equitable tolling or estoppel arguments, and that genuine issues of material fact in this case precluded the grant of summary judgment. We review motions for summary judgment de novo. See Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 108-09 (1st Cir.1997). Discussion State law statutes of limitations govern suits in federal courts arising under § 1983. See Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). In Wilson v. Garcia, the Supreme Court - determined that the state statute of limitations applicable in tort actions for personal injuries governs § 1983 claims. See 471 U.S. 261, 276-80, 105 S.Ct. 1938, 1947-49, 85 L.Ed.2d 254 (1985). The plaintiff does not dispute that Puerto Rico law establishes a one year prescription period for the claims in this ease. See P.R. Laws Ann. tit. 31, § 5298 (1994); Rodriguez Narvaez v. Nazario, 895 F.2d 38, 41-42 (1st Cir.1990). The one year period begins running one day" }, { "docid": "23148154", "title": "", "text": "appellant. Appellant alleges that as a result of these wrongs appellees deprived appellant of rights, privileges and immunities secured by the United States Constitution in violation of 42 U.S.C. § 1983. The district court dismissed McCune’s complaint on December 30, 1986, holding that it had not been filed within the applicable three year statute of limitations. McCune filed this timely appeal. This court must decide whether the district court erred in dismissing appellant’s complaint in its entirety for failure to comply with the statute of limitations. II. In Wilson v. Garcia, 471 U.S. 261, 276-280, 105 S.Ct. 1938, 1947-1950, 85 L.Ed.2d 254 (1985), the Supreme Court held that the appropriate statute of limitations to be applied in all section 1983 actions is the state statute of limitations governing actions for personal injury. Subsequently, in Carroll v. Wilkerson, 782 F.2d 44, 45 (6th Cir.), cert. denied, — U.S. —, 107 S.Ct. 330, 93 L.Ed.2d 302 (1986), this court held that Michigan’s three year statute of limitations for personal injury claims, Mich.Comp. Laws Ann. § 600.5805(8) (West 1987), governs section 1983 actions when the cause of action arises in Michigan. In the instant case, since the cause of action arose in Michigan, the applicable statute of limitations is Michigan’s three year statute of limitations for personal injury claims. The more critical question for the purposes of this appeal concerns when appellant’s section 1983 cause of action accrued. Although Wilson held that state law provides the statute of limitations in section 1983 actions, it also reaffirmed that federal law and not state law is relevant for the purpose of characterizing a section 1983 claim. Wilson, 471 U.S. at 268-71, 105 S.Ct. at 1943-45. Accordingly, federal law governs the question of when that limitations period begins to run. Sevier v. Turner, 742 F.2d 262, 272 (6th Cir.1984). In Sevier, this court held that the statute of limitations begins to run when the plaintiff knows or has reason to know of the injury which is the basis of his action and that a plaintiff has reason to know of his injury when he should have" }, { "docid": "21443879", "title": "", "text": "case. Finally, the plaintiff asserts that summary judgment is generally inapplicable in actions raising equitable tolling or estoppel arguments, and that genuine issues of material fact in this case precluded the grant of summary judgment. We review motions for summary judgment de novo. See Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 108-09 (1st Cir.1997). Discussion State law statutes of limitations govern suits in federal courts arising under § 1983. See Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). In Wilson v. Garcia, the Supreme Court - determined that the state statute of limitations applicable in tort actions for personal injuries governs § 1983 claims. See 471 U.S. 261, 276-80, 105 S.Ct. 1938, 1947-49, 85 L.Ed.2d 254 (1985). The plaintiff does not dispute that Puerto Rico law establishes a one year prescription period for the claims in this ease. See P.R. Laws Ann. tit. 31, § 5298 (1994); Rodriguez Narvaez v. Nazario, 895 F.2d 38, 41-42 (1st Cir.1990). The one year period begins running one day after the date of accrual, which is the date plaintiff knew or had reason to know of the injury. See Carreras-Rosa v. Alves-Cruz, 127 F.3d 172 (1st Cir.1997): The tolling of the statute of limitations is also governed by state law. See, e.g., Torres v. Superintendent of Police, 893 F.2d 404, 407 (1st Cir.1990). Article 1873 of the Civil Code of Puerto Rico provides that extrajudicial claims will toll the one-year statute of limitations: Prescription of actions is interrupted by their institution before the courts, [or] by extrajudicial claims of the creditor____ P.R. Laws Ann. tit. 31, § 5303 (1994). “[T]he tolling is effective with regard only to identical causes of action. The statute of limitations is not tolled for all claims arising out of the same facts.... ” Rodriguez Narvaez, 895 F.2d at 43 (citations omitted). Moreover, the relief requested in the extrajudicial claim must be the same relief that is later requested in court. See Riofrio Anda v. Ralston Purina, Co., 959 F.2d 1149, 1154 (1st Cir.1992); Rodriguez Narvaez, 895 F.2d at 44;" }, { "docid": "14813129", "title": "", "text": "§ 2A, which provides, in relevant part, as follows: Except as otherwise provided, actions of tort, ... to recover for personal injuries, ... shall be commenced only within three years next after the cause of action accrues. The question of when a cause of action accrued is a matter of federal law. Rodriguez Narvaez v. Nazario, 895 F.2d 38, 41 n. 5 (1st Cir.1990). “The accrual period for a Section 1983 action begins when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Torres v. Superintendent of Police, 893 F.2d 404, 407 (1st Cir.1990). As Street’s transfer, detention in segregation, and mail losses were all completed by March 1982, all his claims accrued by then, and the limitation period expired in March 1985. Street filed his complaint in July 1990, more than five years after the statute of limitations expired. The complaint is time-barred unless, as Street argues, the limitations period is tolled by reason of Street’s imprisonment or alleged mental incapacity. Board of Regents v. Tomanio, 446 U.S. 478, 483-486, 100 S.Ct. 1790, 1794-1796, 64 L.Ed.2d 440 (1980), directs federal courts to borrow state tolling rules unless they are inconsistent with federal law. See also Hardin v. Straub, 490 U.S. 536, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989); Torres Ramirez v. Bermudez Garcia, 898 F.2d 224, 229 n. 2 (1st Cir.1990). Presently, (and when the complaint was filed in July 1990), the Massachusetts tolling statute, Mass. G.L. c. 260, § 7, allows the limitations period to be tolled when a person is incapacitated by reason of mental illness when the right to bring an action first accrues. In support of his tolling claim, Street relies on his history, which discloses that he has been described as suffering from schizophrenia, a sociopathic personality, and a severe character disorder. See Commonwealth v. Street, 388 Mass. 281, 446 N.E.2d 670, 671 (1983). Street also offers excerpts from recent (1990) Department of Correction classification and disciplinary reports which describe erratic behavior on his part in 1986 and an apparent suicide attempt in June 1990." }, { "docid": "4044748", "title": "", "text": "October 12, 1989. The district court dismissed Farrell’s complaint against McDonough as untimely and this appeal followed. II. Farrell advances a three-pronged argument in support of his position that the district court erred in finding his complaint against McDonough untimely. First, he asks this court to overrule Kalimara v. Illinois Department of Corrections, 879 F.2d 276 (7th Cir.1989) (per curiam), which held that section 1983 cases arising in Illinois are governed by the state’s two-year statute of limitations for personal injury claims. Ill.Rev.Stat. ch. 110, 1113-202 (“section 202”). Farrell insists that we should instead apply Illinois’ five-year statute of limitations for “all civil actions not otherwise provided for,” Ill.Rev.Stat. ch. 110, 1113-205 (“section 205”), a result he says is compelled by an analogous decision regarding the statute of limitations for section 1983 claims arising in Wisconsin. See Gray v. Lacke, 885 F.2d 399 (7th Cir.1989) (section 1983 claims arising in Wisconsin governed by six-year personal rights statute rather than three-year statute covering “injuries to the person”), cert. denied, 494 U.S. 1029, 110 S.Ct. 1476, 108 L.Ed.2d 613 (1990), Alternatively, Farrell asks us to find that his amended complaint against McDonough is timely either because the limitations period was tolled under Ill.Rev. Stat. ch. 110, 1113-211, or because his amended claim relates back to the date his original complaint was filed. See Fed. R.Civ.P. 15(c). We address Farrell’s arguments in turn, but find none persuasive. A. Section 1983 does not contain a federal statute of limitations. Consequently, prior to Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), the Supreme Court instructed lower courts to apply the state statute of limitations “most analogous” to the particular section 1983 action being litigated. Board of Regents v. Tomanio, 446 U.S. 478, 488, 100 S.Ct. 1790, 1797, 64 L.Ed.2d 440 (1980). In Wilson, however, the Court abandoned this case-by-ease approach and directed lower courts to conduct the section 1983 statute of limitations inquiry at a higher level of abstraction. Wilson teaches that all section 1983 actions are best characterized as personal injury actions and that courts should therefore apply a" }, { "docid": "23274543", "title": "", "text": "Title VII action is barred by her failure to file it within the requisite period of limitations. We reach a different conclusion with respect to Brown’s claim under section 1983. Because no federal statute of limitations is provided for section 1983 suits, we measure the timeliness of such actions by state law. See Hardin v. Straub, 490 U.S. 536, 538, 109 S.Ct. 1998, 2000,104 L.Ed.2d 582 (1989). The Supreme Court has made clear that a federal court applying a state’s limitations periods should apply that state’s tolling provisions as well. “Limitations periods in § 1983 suits are to be determined by reference to the appropriate ‘state statute of limitations and the coordinate tolling rules.’ ” Id. 109 S.Ct. at 2001 (quoting Board of Regents v. Tomanio, 446 U.S. 478, 484, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440 (1980)); see also Bianchi v. Bellingham Police Dept., 909 F.2d 1316, 1317-18 (9th Cir.1990); Jones v. City of Hamtramck, 905 F.2d 908, 909 (9th Cir.) (per curiam); cert. denied, — U.S. -, 111 S.Ct. 265, 112 L.Ed.2d 222 (1990); Rodriguez Narvaez v. Nazario, 895 F.2d 38, 42 (1st Cir.1990); Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir.1989). The same reasoning applies to the savings provision, which is an integral part of a state’s limitations and tolling rules. See Whittle v. Wiseman, 683 F.2d 1128, 1129 (8th Cir.1982); see also Garrison, 714 F.2d at 759 n. 2 (Arkansas savings clause applies to § 1981 claim). Accordingly, we must address whether Oklahoma law provides for saving Brown’s otherwise untimely section 1983 claim. Brown relies on Okla.Stat. tit. 12, § 100 (1981), which states: “If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed.” Under this statute, “[wjhere a" }, { "docid": "22361847", "title": "", "text": "of limitations grounds. Before examining TwoRivers’ argument on its merits, the court first turns to the time limitations governing § 1983 claims. A. Section 1983 does not contain its own statute of limitations. Without a federal limitations period, the federal courts borrow the statute of limitations for § 1983 claims applicable to personal injury claims in the forum state. See Wilson v. Garcia, 471 U.S. 261, 279-80, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In Arizona, the courts apply a two-year statute of limitations to § 1983 claims. See Marks v. Parra, 785 F.2d 1419, 1420 (9th Cir.1986) (citing A.R.S. § 12-542). But in borrowing a state statute of limitations for a federal cause of action, “we borrow no more than necessary.” West v. Conrail, 481 U.S. 35, 39-40, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987). Consistent with this maxim, federal, not state, law determines when a civil rights claim accrues. See Elliott v. City of Union City, 25 F.3d 800, 801-802 (9th Cir.1994). Under federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action. See Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir.1996). Here, TwoRivers knew or had reason to know of the ADOC employees’ deliberate indifference to his medical needs by September 14, 1994, the date of TwoRivers’ transfer back to the Tucson complex after receiving the alleged improper medical care. TwoRivers filed suit on October 8, 1996, more than two years after TwoRivers’ § 1983 claim had accrued. Therefore, as we have observed, the two-year statute of limitations would bar the present action unless TwoRivers’ incarceration tolled the limitations period sufficiently to permit him to proceed with this suit. In actions like this one, where the federal courts borrow the state statute of limitations, we also borrow the forum state’s tolling rules. See Hardin v. Straub, 490 U.S. 536, 539, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989); Board of Regents of the Univ. of New York v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). Under former §" }, { "docid": "23210576", "title": "", "text": "the alleged injury occurred. In applying these state limitations statutes, federal courts also follow the tolling laws of the state where the injury occurred. Hardin v. Straub, 490 U.S. 536, 109 S.Ct. 1998, 2003, 104 L.Ed.2d 582 (1989); Board of Regents, University of New York v. Tomanio, 446 U.S. 478, 484, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440 (1988). Federal law, however, determines the accrual of a claim. Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir.1989); Saldivar v. Cadena, 622 F.Supp. 949, 956 n. 2 (W.D.Wis.1985). Generally, a claim accrues when the plaintiff knows or has reason to know of the injury giving rise to the cause of action. Torres v. Superintendent of Police of Puerto Rico, 893 F.2d 404, 407 (1st Cir.1990). Civil rights claims, therefore, accrue when the plaintiff knows or should know that his or her constitutional rights have been violated. See Barrett v. United States, 689 F.2d 324 (2d Cir.), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983); Rinehart v. Locke, 454 F.2d 313, 315 (7th Cir.1971) (section 1983 claim regarding the fourth amendment accrued at the time of the arrest and search, not when conviction was subsequently reversed); cf. Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (section 1981 claim accrued when tenure decision was made and communicated, not when plaintiff was eventually fired). The plaintiff has alleged that many employees of the Illinois Department of Corrections (IDOC) and Lee County conspired to retaliate against him for exercising his first amendment rights by “setting him up” for a prison rules violation and then disciplining and prosecuting him without due process of law. The injuries Wilson suffered because of these alleged wrongs were the punishment for his disciplinary ticket and the ten-year sentence imposed by the Lee County Court. A civil conspiracy claim accrues “ ‘when the plaintiff becomes aware that he is suffering from a wrong for which damages may be recovered in a civil action.’ ” Scherer v. Balkema, 840 F.2d 437, 440 (7th Cir.1988) (quoting Singleton v. City of New York," }, { "docid": "14813128", "title": "", "text": "claim that appears to have expired under the applicable statute of limitations may be dismissed as frivolous under Neitzke. Authority indicates that such dismissals are acceptable. See Clark v. Georgia Pardons and Paroles Board, 915 F.2d 636, 640 n. 2 (11th Cir.1990) (“The expiration of the statute of limitations is an affirmative defense the existence of which warrants a dismissal as frivolous”). For the reasons discussed below, we hold dismissal under the statute of limitations was proper. The Supreme Court directs federal courts adjudicating civil rights claims under 42 U.S.C. § 1983 to borrow the statute of limitations applicable to personal injury actions under the law of the forum state. Wilson v. Garcia, 471 U.S. 261, 276-280, 105 S.Ct. 1938, 1947-1949, 85 L.Ed.2d 254 (1985). Where a state has more than one statute of limitations that applies to personal injury actions, a federal court should borrow the state’s general or residual personal injury statute of limitations. Owens v. Okure, 488 U.S. at 249-250, 109 S.Ct. at 581-582. In Massachusetts, that statute is M.G.L. c. 260 § 2A, which provides, in relevant part, as follows: Except as otherwise provided, actions of tort, ... to recover for personal injuries, ... shall be commenced only within three years next after the cause of action accrues. The question of when a cause of action accrued is a matter of federal law. Rodriguez Narvaez v. Nazario, 895 F.2d 38, 41 n. 5 (1st Cir.1990). “The accrual period for a Section 1983 action begins when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Torres v. Superintendent of Police, 893 F.2d 404, 407 (1st Cir.1990). As Street’s transfer, detention in segregation, and mail losses were all completed by March 1982, all his claims accrued by then, and the limitation period expired in March 1985. Street filed his complaint in July 1990, more than five years after the statute of limitations expired. The complaint is time-barred unless, as Street argues, the limitations period is tolled by reason of Street’s imprisonment or alleged mental incapacity. Board of Regents v." }, { "docid": "22924566", "title": "", "text": "1173 (“Puerto Rico law gives employees with [‘career’] status ‘property’ rights in their continued employment”). Notwithstanding Rivera’s entitlement to the benefits of due process, he— like any other potential plaintiff — had a corollary obligation to act in a timeous manner. Since appellant’s suit was brought under 42 U.S.C. § 1983 (1988), we look to local law to discern the applicable limitation period. See Wilson v. Garcia, 471 U.S. 261, 276-80, 105 S.Ct. 1938, 1947-49, 85 L.Ed.2d 254 (1985); Street v. Vose, 936 F.2d 38, 39 (1st Cir.1991) (per curiam) (“The Supreme Court directs federal courts adjudicating civil rights claims under 42 U.S.C. § 1983 to borrow the statute of limitations applicable to personal injury actions under the law of the forum state.”), cert. denied, — U.S. -, 112 S.Ct. 948, 117 L.Ed.2d 117 (1992). In Puerto Rico, the limitation period for section 1983 cases is one year. See, e.g., Rodriguez Narvaez v. Nazario, 895 F.2d 38, 42 (1st Cir.1990); Torres v. Superintendent of Police, 893 F.2d 404, 406 (1st Cir.1990); De Leon Otero v. Rubero, 820 F.2d 18, 19 (1st Cir.1987). Hence, Rivera was obligated to sue within one year of the time his cause of action accrued, or forever hold his peace. Although the statute of limitations in section 1983 actions is determined by recourse to the law of the forum state, the date of accrual of such an action is determined in accordance with federal law. See Street, 936 F.2d at 40; Rodriguez Narvaez, 895 F.2d at 41 n. 5; Pauk v. Board of Trustees of the City University of New York, 654 F.2d 856, 859 (2d Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982). The accrual period in a section 1983 case ordinarily starts when the plaintiff knows, or has reason to know, of the injury on which the action is based. See Street, 936 F.2d at 40; Marrapese v. Rhode Island, 749 F.2d 934, 936 (1st Cir.1984), cert. denied, 474 U.S. 921, 106 S.Ct. 252, 88 L.Ed.2d 259 (1985). III. Analysis A. It is readily evident, based on the foregoing," }, { "docid": "2136224", "title": "", "text": "the day injury or damage is done). The trial court treating the motion to dismiss as one for summary judgment held that the suit was not filed in a proper venue, and that neither. Webb nor Allison were served within the one year prescriptive period. He then proceeded to hold that under Louisiana Law, the period of prescription was not tolled by the filing in an improper venue until the defendant is actually served with process. La.Civ.Code Ann. art. 3462 (West Supp. 1982) Calhoun v. Ford, 625 F.2d 576 (5th Cir.1980). The suits against Webb and Allison were dismissed because they had not been served within the one year prescriptive period. This appeal followed. APPLICABILITY OF ARTICLE 3462-LA.CIVIL CODE ANN. Checki contends that application of La. Civil Code Art. 3462 rather than Fed.R. Civ.P. 3 was error. The argument is that we have here a federal question case and the filing of suit operated to toll limitations, regardless of state tolling rules. Caldwell v. Martin Marietta Corporation, 632 F.2d 1184, 1188 (5th Cir.1980) (Title VII, 1981 claims). Resolution of this issue turns on an interpretation of 42 U.S.C. § 1988, which provides that the civil rights acts borrow state law when necessary as long as the state law “is not inconsistent with” federal law. The Supreme Court has interpreted section 1988 to require ap plication of state tolling rules unless they are “ ‘inconsistent’ with the policies underlying § 1983.” Board of Regents v. Tomanio, 446 U.S. 478, 487, 100 S.Ct. 1790, 1796, 64 L.Ed.2d 440, 449 (1980). In Tomanio the court held that plaintiff’s section 1983 claim was barred by New York’s statute of limitations, because New York law did not provide for tolling of the statute during the pendency of a related, but independent cause of action. In general, state policies of repose are not inconsistent with section 1983. Tomanio, 446 U.S. at 488, 100 S.Ct. at 1797. Under Louisiana law, which the Supreme Court in Wilson v. Garcia, — U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) has held to be applicable in section 1983 actions," } ]

[ { "docid": "23583592", "title": "", "text": "each category to consider whether that category adequately reflects the seriousness of the defendant’s record. Only upon finding a category inadequate may the court proceed to the next category. See United States v. Coe, 891 F.2d 405, 412 (2d Cir.1989). Once the court finds a category that fits, it must “ ‘use the corresponding sentencing range for that category’ ” to guide the departure. Id. (quoting United States v. Cervantes, 878 F.2d 50, 53 (2d Cir.1989)); see U.S.S.G. § 4A1.3 (“In considering a departure under this provision, the Commission intends that the court use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable.”). We have on occasion criticized this procedure as rigid and mechanistic. See United States v. Thomas, 6 F.3d 960, 964-65 (2d Cir.1993); United States v. Rodriguez, 968 F.2d 130, 140 (2d Cir.), cert. denied, — U.S. —, 113 S.Ct. 140, 121 L.Ed.2d 92 (1992). Indeed, we have refused to require it for offense level departures, known as vertical departures, including those under U.S.S.G. § 5K2.0 for aggravating circumstances “of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” See United States v. Campbell, 967 F.2d 20, 25-26 (2d Cir.1992) (involving U.S.S.G. § 2L1.2, but discussing § 5K2.0); see also United States v. Hernandez, 941 F.2d 138, 140-41 (2d Cir.1991) (upholding 5K2.0 departure, even though step-by-step procedure not followed). Nonetheless, a district court cannot avoid this step-by-step framework “by classifying a departure based on criminal history as [an offense level departure] involving aggravating circumstances under 5K2.0.” United States v. Deutsch, 987 F.2d 878, 887 (2d Cir.1993). Deutsch is almost squarely on point. There, “the district court failed to state the section number upon which it relied to make its upward departure.” Id. Although the district court “gave every indication that it was making a 5K2.0 departure,” it “based its departure on [the defendant’s] criminal record and likelihood of recidivism.” Id. We held that “[t]hese factors are exactly those to be considered under Section 4A1.3” when departing horizontally for" } ]

[ { "docid": "16320452", "title": "", "text": "in my view, requires the Court to calculate the injuries to Daniel Norden as part of that count, in the classical, common law notion of transference. He could have been found guilty of the murder of Daniel Norden, God forbid the boy had died, even though he had no intention of murdering him. It seems to me perfectly logical, indeed compelling, that the injuries that that young fellow sustained should be calculated when we do the pseudo-count analysis into the pseudo-count involving the conspiracy to murder McLaughlin. (App. at 637i-37j). However, the court also offered an alternative formulation of the increase as an upward departure: But when we are calculating the attempt to murder Mr. McLaughlin, I don’t use McLaughlin’s injuries.... I think I am impelled, either as a matter of guidelines calculation, which I think is sound, or even as a matter of departure to calculate, if you will, the nature of the injuries sustained by Mr. Norden and that’s where we differ. (App. at 641). Although the district court offered alternative grounds for the four-level increase, we see no need to explore the application of the doctrine of transferred intent to this guideline, as the increase was clearly an appropriate upward departure. U.S.S.G. § 5K2.0, p.s., provides for departures from the Sentencing Guidelines where the sentencing court finds “ ‘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.’” (Quoting 18 U.S.C. § 3653(b).) Section 5K2.0 allows an upward departure for misconduct that, though not technically covered by the Guidelines’ definition of relevant conduct, was still related to the offense of conviction. See United States v. Tropiano, 50 F.3d 157, 164 (2d Cir.1995). We review the district court’s departure for an abuse of discretion. See Koon v. United States, — U.S. -, -, 116 S.Ct. 2035, 2046, 135 L.Ed.2d 392 (1996). In so doing, we generally apply a three-part analysis: first, we determine de novo whether this factor is related to the offense" }, { "docid": "3155315", "title": "", "text": "Lugman’s base offense level by two-levels under U.S.S.G. § 3B1.2 for being a minimal participant. II. LAW & ANALYSIS A. § 5K2.0 Downward Departure U.S.S.G. § 5K2.0 allows the district court to make a downward departure from the guidelines “if the court finds ‘that there exists [a] ... 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.’” To the extent that the district court’s decision not to depart downward in this case involves a determination of whether § 5K2.0 can apply in cases of substantial assistance is a question of law reviewed for abuse of discretion. Koon v. United States, — U.S. -, -, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996) (noting that a district court by definition abuses its discretion when it makes an error of law, and therefore a unitary abuse of discretion standard of review is sufficient). Likewise, if, as a matter of law, § 5K2.0 may be applied to make a downward departure in a case of substantial assistance, then the determination of whether the facts warrant a downward departure under § 5K2.0 “will in most eases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Id. at -, 116 S.Ct. at 2046. Yet, this Court has gone even further in the context of downward departures under § 5K2.0, stating that: [w]e may only review a trial court’s refusal to grant a downward departure from the Guidelines if the refusal was based on a violation of the law ... Thus, we have jurisdiction if a district court’s refusal to depart downward is premised upon the court’s mistaken conclusion that the Guidelines do not permit such departure, but we have no jurisdiction if the court’s refusal is based on its determination that departure is not warranted on the facts of the ease. United States v. Palmer, 122 F.3d 215, 222 (5th Cir.1997), citing United States v. Mitchell, 964 F.2d 454, 462 (5th Cir.1992). This rule of" }, { "docid": "22993571", "title": "", "text": "on a combination of factors that took the case out of the “heartland” of the fraud guideline. A district court’s decision to depart from the applicable guideline range is subject to review for abuse of discretion. See Koon v. United States, 518 U.S. 81, 99-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Jacobs, 167 F.3d 792, 798 (3d Cir.1999). We find the district court did not abuse its discretion by departing from the Guidelines in this case. The Commission conceives of each offense guideline as “carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes.” U.S.S.G., Ch.l, Pt. A, intro, p.s. 4(b) (Nov. 1997). In the unusual case in which a defendant’s conduct falls outside the typical “heartland,” the court may consider a departure from the Guidelines sentence. See id.; United States v. Baird, 109 F.3d 856, 870 (3d Cir.), cert. denied, — U.S. —, 118 S.Ct. 243, 139 L.Ed.2d 173 (1997) (citing Koon, 518 U.S. at 93-94, 116 S.Ct. 2035). Section 5K2.0 provides that a court may impose a sentence outside 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 that should result in a sentence different from that described.’ ” U.S.S.G. § 5K2.0, p.S; (Nov.1997) (quoting 18 U.S.C. § 3553(b)). The Commentary to § 5K2.0 adds that a court may also depart in the “extraordinary case that, because of a combination of such characteristics or circumstances, differs significantly from the ‘heartland’ cases covered by the guidelines in a way that is important to the statutory purposes of sentencing, even though none of the characteristics or circumstances individually distinguishes the ease,” but also notes that these departures “will be extremely rare.” Id., comment.;, see also Koon, 518 U.S. at 113-114, 116 S.Ct. 2035 (noting that departure is possible based on a combination of factors, even though none of the factors standing alone would justify a departure). Outside of a limited number of prohibited" }, { "docid": "7854306", "title": "", "text": "States Sentencing Guidelines § 2A1.4(a)(2). A two-level downward adjustment was made for acceptance of responsibility under U.S.S.G. § 3El.l(a), to arrive at a total offense level of 12. With a Criminal History Category of I, Ms. Whiteskunk’s Guideline range for imprisonment was calculated at 10-16 months. At the sentencing hearing, the district court decided to depart upward three levels from the base offense level, finding certain aggravating factors in the presentence report indicated “the defendant’s conduct ... exceeded reckless behavior, and therefore, exceeded the guidelines.” The district court rested its decision on a number of factors including: (1) Ms. Whiteskunk’s blood alcohol content, which was more than twice the legal limit; (2) a prior conviction for drank driving, which put her on notice of the “illegality and the dangerousness of drinking and driving”; and (3) multiple opportunities for Ms. Whiteskunk to correct her behavior before the accident. Ms. Whiteskunk asserts the district court erred because it: (1) abused its discretion in departing upward on the bases that death resulted and that her conduct exceeded the standard of recklessness, (2) failed to explain the upward departure, and (3) failed to provide adequate notice of intent to depart upward and the basis for the departure. DISCUSSION I. Upward Departure Analysis — An Overview United States v. Collins, 122 F.3d 1297 (10th Cir.1997), sets forth our general framework for reviewing Sentencing Guideline departures following the Supreme Court’s landmark decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). 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 ease falls under the category of a “heartland ease” or an “unusual case.” See Koon, 518 U.S. at 93, 116 S.Ct. 2035. In Koon, the Court explained" }, { "docid": "15933164", "title": "", "text": "range for abuse of discretion. See Koon v. United States, 518 U.S. 81, 99-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). “A district court by definition abuses its discretion when it makes an error of law.” Id. at 100, 116 S.Ct. 2035. A district court must order a sentence within the relevant guideline range “ ‘unless 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 that should result in a sentence different from that described.’ ” United States v. Kikumura, 918 F.2d 1084, 1098 (3d Cir.1990) (citing 18 U.S.C. § 3553(b)). In Koon, the Supreme Court noted that the sentencing guidelines provide “considerable guidance ... by listing certain factors as either encouraged or discouraged bases for departure.” 518 U.S. at 94, 116 S.Ct. 2035. Encouraged factors are those “the Commission has not been able to take into account fully in formulating the guidelines.” U.S.S.G. § 5K2.0. Because extreme conduct under U.S.S.G. § 5K2.8 is an encouraged factor, see, e.g., United States v. Lewis, 115 F.3d 1531, 1539 (11th Cir.1997), the sentencing court may depart if the “applicable guideline does not already take it into account,” United States v. Iannone, 184 F.3d 214, 226 (3d Cir.1999). If, on the other hand, the applicable sentencing guideline does take the encouraged factor into account, the sentencing court may depart upward if the encouraged factor “ ‘is present to a degree substantially in excess of that which ordinarily is involved in the offense.’ ” Koon, 518 U.S. at 95, 116 S.Ct. 2035 (quoting U.S.S.G. § 5K2.0). Queensborough’s PSR calculated his offense level as 32 and his Criminal History as I, resulting in a guideline range of 121-151 months imprisonment. As noted above, the District Court, granting an upward departure, sentenced Queensborough to 240 months (20 years) imprisonment on the aggravated rape count and to the statutorily mandated sentence of 60 months on the firearm count, to run consecutively. It is the sentence for the aggravated rape that is the basis for the" }, { "docid": "5470960", "title": "", "text": "also allow the district court to depart from the assigned offense levels and impose a lesser sentence.” United States v. Flores, 63 F.3d 1342, 1368 (5th Cir.1995) (analyzing whether Simmons requires a parole ineligibility instruction in a § 848 death penalty case); see, e.g., U.S.S.G. § 5K2.0, p.s. (noting that under 18 U.S.C.A. § 3553(b) (West 2000), the sentencing court may sentence the defendant “outside the range established by the applicable guidelines, 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 that should result in a sentence different from that described”) (internal quotation marks omitted). We do not read the statement in U.S.S.G. § 2A1.1 application note 1 that “[t]he [Sentencing Guidelines] Commission has concluded that in the absence of capital punishment, life imprisonment is the appropriate punishment for premeditated killing,” to preclude unequivocally a downward departure by the district court in all cases involving an intentional killing. Both the Supreme Court and this Court have held that the Guidelines do “not eliminate all of the district court’s discretion” in sentencing. Koon v. United States, 518 U.S. 81, 92, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. DeBeir, 186 F.3d 561, 565-66 (4th Cir.1999). U.S.S.G. ch. 5, pt. K “lists factors that the Commission believes may constitute grounds for departure.” U.S.S.G. ch. 1, pt. A, intro, comment 4(b), at 7. However, the Commission recognizes that this “list is not exhaustive” and “that there may be other grounds for departure that are not mentioned.” Id. Therefore, in extraordinary cases, a sentencing court may depart from the designated sentencing 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 that should result in a sentence different from that described.’ ” Koon, 518 U.S. at 92, 116 S.Ct. 2035 (quoting 18 U.S.C.A. § 3553(b)); DeBeir, 186 F.3d at 566 (same). Finally, the possibility exists" }, { "docid": "15235455", "title": "", "text": "offender and in upwardly departing on this basis. “A district court must impose a sentence within a defendant’s guideline range ‘unless 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 that should result in a sentence different from that described.’ ” United States v. Hall, 977 F.2d 861, 863 (4th Cir.1992) (quoting 18 U.S.C. § 3553(b) (2000)). The sentencing court must first identify a particular aggravating or mitigating circumstance not adequately considered by the Sentencing Commission in formulating the Sentencing Guidelines. Second, the sentencing court must determine that the circumstance is of sufficient importance and magnitude that a departure from the guideline range should result. Third, the extent of any departure adopted by the sentencing court must be reasonable. See United States v. Cash, 983 F.2d 558, 560 (4th Cir.1992). The Sentencing Commission has expressly identified some circumstances that it did not adequately consider, including the inadequacy of a defendant’s criminal history category. See United States v. Summers, 893 F.2d 63, 67 (4th Cir.1990). Section 4A1.3 of the Guidelines expressly authorizes sentencing courts to upwardly depart when the defendant’s “criminal history category significantly underrepre-sents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit further crimes,” U.S.S.G. § 4A1.3, and the district court relied on this section for its upward departure. We do not believe that the district court erred in the nature or in the extent of the departure from Lawrence’s criminal history category or base offense level. We need not conclude whether an abuse of discretion standard, see Koon v. United States, 518 U.S. 81, 99-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), or de novo review applies to this case, see Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003, Pub.L. No. 108-21, § 401(d), 117 Stat. 650, 670 (amending 18 U.S.C. § 3742(e)), because we find that the result would be the same under either standard of review. The district court detailed several independent grounds" }, { "docid": "15933163", "title": "", "text": "plea agreement did not provide that Queensborough was free to withdraw his plea if the court sentenced him to a longer prison term. Cf. United States v. Grant, 117 F.3d 788, 792 n. 5 (5th Cir.1997) (agreement provided that defendant could withdraw guilty plea if court set an offense level higher than that in the plea agreement). The prosecutor adhered to the terms of the agreement, and we see no basis to vacate the sentence on the ground of a breach of the plea agreement. C. Excessive Departure In addition to his challenge to the process leading to the departure, Queensborough asserts two separate but related challenges to the fact of departure. First, he contends that the District Court’s decision to upwardly depart from the guidelines based on extreme conduct is not supported by the record and that such a departure was not permissible under the guidelines. Second, he contends that the District Court abused its discretion by imposing an excessive upward departure. We review a district court’s decision to depart from the applicable guideline range for abuse of discretion. See Koon v. United States, 518 U.S. 81, 99-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). “A district court by definition abuses its discretion when it makes an error of law.” Id. at 100, 116 S.Ct. 2035. A district court must order a sentence within the relevant guideline range “ ‘unless 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 that should result in a sentence different from that described.’ ” United States v. Kikumura, 918 F.2d 1084, 1098 (3d Cir.1990) (citing 18 U.S.C. § 3553(b)). In Koon, the Supreme Court noted that the sentencing guidelines provide “considerable guidance ... by listing certain factors as either encouraged or discouraged bases for departure.” 518 U.S. at 94, 116 S.Ct. 2035. Encouraged factors are those “the Commission has not been able to take into account fully in formulating the guidelines.” U.S.S.G. § 5K2.0. Because extreme conduct under U.S.S.G. § 5K2.8" }, { "docid": "3735553", "title": "", "text": "United States v. Kraig, 99 F.3d 1361, 1369 (6th Cir.1996) (three-level increase appropriate for managerial role where the defendant helped recruit people into the scheme and rendered other substantial assistance in furtherance of the scheme). Third, Brown complains that the district court improperly imposed a two-level upward departure in sentencing him, and that this departure was motivated by the fact that he decided to go to trial while his co-'conspirators all pleaded guilty. We review for abuse of discretion a district court’s decision to depart upward. See, e.g., United States v. Dobish, 102 F.3d 760, 763 (6th Cir.1996) (quoting Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996)). A district court abuses its discretion when it commits an error of law in the interpretation or application of the guidelines. United States v. Wright, 119 F.3d 390, 392 (6th Cir.1997). U.S.S.G. § 5K2.0 and 18 U.S.C. § 3553(b) allow a district court to impose a sentence outside of 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 ... guidelines that should result in a sentence different from that described.” Section 5K2.0 (quoting 18 U.S.C. § 3553(b)). The district court provided five reasons for departing upward in this case: (1) the number of victims, 336, because U.S.S.G. § 2F1.1(b)(2)(B) does not adequately take into account such a large number of victims; (2) the financial and psychological damage that Brown inflicted upon his victims; (3) the fact that he continually “reloaded” his victims; (4) Brown showed no remorse and did not think he did anything wrong; and (5) the Senior Citizens Against Marketing Scams Act of 1994 (“SCAMS”), 18 U.S.C. §§ 2325-2327 manifests Congress’s view that the Guidelines do not adequately punish defendants who target the elderly. J.A. at 444-46 (Sentencing Hr’g). Brown focuses on the SCAMS Act factor, arguing that the Guidelines already adequately punish his conduct as reflected in the relevant conduct, role in the offense, and vulnerable victim guidelines. The SCAMS Act came" }, { "docid": "16320453", "title": "", "text": "the four-level increase, we see no need to explore the application of the doctrine of transferred intent to this guideline, as the increase was clearly an appropriate upward departure. U.S.S.G. § 5K2.0, p.s., provides for departures from the Sentencing Guidelines where the sentencing court finds “ ‘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.’” (Quoting 18 U.S.C. § 3653(b).) Section 5K2.0 allows an upward departure for misconduct that, though not technically covered by the Guidelines’ definition of relevant conduct, was still related to the offense of conviction. See United States v. Tropiano, 50 F.3d 157, 164 (2d Cir.1995). We review the district court’s departure for an abuse of discretion. See Koon v. United States, — U.S. -, -, 116 S.Ct. 2035, 2046, 135 L.Ed.2d 392 (1996). In so doing, we generally apply a three-part analysis: first, we determine de novo whether this factor is related to the offense and not adequately considered by the Sentencing Commission, see United States v. Sisti, 91 F.3d 305, 315 (2d Cir.1996); second, we determine whether the district court’s departure is supported by findings of fact, see Tropiano, 50 F.3d at 164; last, we ascertain whether the district court adequately has explained how it determined the extent of its departure, see id. Courts have held that § 2A2.1 and similar guidelines that refer to increases based on injury to “the victim” are predicated upon the risk to a single intended victim, and do not -account for injuries and risks of injury to bystanders or multiple victims. See United States v. Carpenter, 914 F.2d 1131, 1134 (9th Cir.1990) (§ 2A2.1); see also United States v. Pittman, 55 F.3d 1136, 1139 (6th Cir.1995) (§§ 2A1.5 and 2E1.4); United States v. Moore, 997 F.2d 30, 36-37 (5th Cir.1993) (§ 2A2.2(b)(3)); United States v. Johnson, 931 F.2d 238, 241 (3d Cir.1991) (same); United States v. Graves, 908 F.2d 528, 531 (9th Cir.1990) (same). For this reason, these courts have held appropriate upward" }, { "docid": "17031003", "title": "", "text": "the targets of the false 8300s covered individual government officials who were targeted because of their positions. For example, individuals targeted included an officer who issued a ticket to a defendant and a judge who presided over a court matter involving a defendant. Conceding that about half of the 8300s that were the subject of her convictions under § 7206(2) targeted federal or state employees, Anderson argues that it was error to apply the enhancement to all of those counts. However, the § 7206 convictions were grouped together without objection. C. Upward Departures under USSG § 5K2.0 and § 5K2.7 We have reviewed a district court’s decision to depart upward or downward from the sentencing guideline range under an afiuse of discretion standard. United States v. Chance, 306 F.3d 356, 393 (6th Cir.2002). Recent amendments to 18 U.S.C. § 3742(e) require de novo review of whether a departure was based on proper factors, but review of the extent of such a departure continues to be for abuse of discretion. See PROTECT Act of 2003, § 401(d), Publ. L. No. 108-21, 117 Stat. 050 (2003). Because we would affirm the upward departures under either standard, we need not decide whether this modification applies to appeals pending as of the effective date of the PROTECT Act. The applicable guidelines allow for upward departures when “there exists an aggravating ... circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b); see USSG § 5K2.0 (2000). When a factor being considered is an encouraged factor, the court may depart if the applicable guideline does not already take the factor into consideration, or, if already taken into account, it is present to a degree that makes the case different from the ordinary case in which it is present. Koon v. United States, 518 U.S. 81, 95-96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Once the district court excluded all of the false 8300s and many of the sight drafts from the loss calculations, the offense level could not be increased" }, { "docid": "14713598", "title": "", "text": "actual criminal history category of II. In response to questions from Thin Elk’s counsel, the court clarified that the upward departure was, in fact, based on extreme psychological injury under U.S.S.G § 5K2.3 and that the reference to Thin Elk’s criminal history level was merely a guide or tool for calculating an appropriate departure value. See Sentencing Transcript at 38-39. With the increase and upward departure, the district court sentenced Thin Elk to 69 months on the assault count and 69 months on the involuntary manslaughter count, to be served concurrently, followed by three years of supervised release. Thin Elk appeals the upward departure alleging that it comprised impermissible double counting of Mr. Koehler’s psychological injury. He does not appeal the manner in which the district court calculated the departure. II. We review the district court’s construction 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). The de novo standard extends to our review of the permissibility of double counting. Id. at 426-27; United States v. Kenney, 283 F.3d 934, 936 (8th Cir.2002). We review the district court’s election to depart from the guidelines for abuse of discretion “because the decision to depart embodies the traditional exercise of discretion by the sentencing court.” Commentary to U.S.S.G. § 5K2.0 (citing Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). The abuse of discretion standard extends to our review of the district court’s determination as to “whether a given factor is present to a degree not adequately considered by the Sentencing Commission.” United States v. Lewis, 235 F.3d 394, 396 (8th Cir.2000). 18 U.S.C. § 3553(b) permits a sentencing court to impose a sentence outside 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 that should result in a sentence different from that described.” Id. The Sentencing Commission enumerated some of the factors that it believed" }, { "docid": "5808774", "title": "", "text": "release, 300 hours of community service, and he was ordered to pay $25,000 in restitution. These sentences included a two-level increase for obstruction of justice for Atóndele under U.S.S.G. § 3C1.1 and an upward departure of two-levels for both defendants under U.S.S.G. § 5K2.0. No sentencing credit was granted to either defendant for acceptance of responsibility under U.S.S.G. § 3E1.1. These appeals followed. II. DISCUSSION Atóndele and Lawal raise a host of challenges to their sentences. We need only address the most meritorious of these arguments here. A. Upward Departures Atóndele and Lawal first challenge the district court’s decision to upwardly depart from their base offense levels pursuant to U.S.S.G. § 5K2.0. Section 5K2.0 states, in pertinent part: [T]he sentencing court may impose a sentence outside the range established by the applicable guideline, 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 that should result in a sentence different from that described.” (quoting 18 U.S.C. § 3553(b)). Acting under this authority, the district court increased each defendant’s offense level by two levels. The district court reasoned that the nature and degree of harm suffered by the individual victims of Atóndele and Lawal’s scheme had not been adequately considered by the Commission. We employ a three-step approach in our review of a district court’s departure from the applicable guideline range: (1) we review de novo whether a district court’s stated grounds for departure may be relied upon to justify the departure; (2) we review for clear error whether the facts that support the grounds for departure actually exist in the ease; and (3) we review deferentially whether the degree of departure is appropriate. United States v. Seacott, 15 F.3d 1380, 1386 (7th Cir.1994) (citations omitted). First, we must determine whether the Commission adequately considered the aggravating factor behind the departure. If the Commission has considered the factor, a departure is not justified. Atóndele and La-wal primarily challenge the departure on the BS round that it was based upon" }, { "docid": "6602009", "title": "", "text": "were. In reaching this conclusion, Mr. Sisti, I find that the payoff of which you were a part and the resultant risky investment of the pension is an aggravating circumstance that the Sentencing Commission did not adequately, and I stress the word adequately, consider in formulating the guidelines. Further, I find that the resultant effect of this payoff and failed investment had on innocent investors existed to a degree not adequately considered by the Sentencing Commission in formulating the guidelines. Accordingly, I am departing upward on this ground. We review de novo whether this factor, the extent of the harm resulting from the illegal use of the funds, was adequately considered by the Sentencing Commission. See United States v. Williams, 37 F.3d 82, 85 (2d Cir.1994). Although U.S.S.G. § 2S1.3(b) creates a two-level sentence enhancement for the illegal use of structured funds, a departure may still be warranted “if the court determines that, in light of unusual circumstances, the guidelines level attached to that factor is inadequate.” U.S.S.G. § 5K2.0. Application note 10 of U.S.S.G. § 2F1.1 specifically acknowledges that an upward departure may be warranted where “the loss determined under [section 2Fl.l(b)(l)] does not fully capture the harmfulness and seriousness of the conduct.” See United States v. Kaye, 23 F.3d 50, 53-54 (2d Cir.1994); United States v. Stauffer, 986 F.2d 916, 928 & n. 16 (5th Cir.) (investors’ loss of life savings not fully considered by dollar loss gradation of § 2F1.1), cert. denied, 510 U.S. 837, 919, 114 S.Ct. 115,314,126 L.Ed. 80, 261 (1993). In this case, we find that the degree of harm flowing from the illegal use of the structured funds — a “devastating” harm to shareholders of the pension fund — so far exceeded that anticipated by the Commission for that offense that an upward departure was appropriate. Sisti also challenges the extent of the departure as unreasonable. In departing upward, a district court must explain the extent of its departure in light of its factual findings. See Tropiano, 50 F.3d at 164; United States v. Thomas, 6 F.3d 960, 964-65 (2d Cir.1993). In this" }, { "docid": "7854307", "title": "", "text": "standard of recklessness, (2) failed to explain the upward departure, and (3) failed to provide adequate notice of intent to depart upward and the basis for the departure. DISCUSSION I. Upward Departure Analysis — An Overview United States v. Collins, 122 F.3d 1297 (10th Cir.1997), sets forth our general framework for reviewing Sentencing Guideline departures following the Supreme Court’s landmark decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). 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 ease falls under the category of a “heartland ease” or an “unusual case.” See Koon, 518 U.S. at 93, 116 S.Ct. 2035. In Koon, the Court explained the Sentencing Commission intended for “ ‘sentencing courts to treat each guideline as carving out a “heartland,” a set of typical eases embodying the conduct that each guideline describes.’” Id. (quoting U.S.S.G. ch. 1 pt. A, intro, comment. 4(b)). If the case falls outside the heartland (i.e., is not the usual type of case), the court may decide to depart from the prescribed sentencing range. Id. When deciding whether to depart from the Guidelines, the district court may not consider certain “forbidden” factors. Collins, 122 F.3d at 1302. Otherwise, the Sentencing Guidelines do not limit or restrict the grounds available for departure. The Guidelines also list factors that are encouraged factors for departure. If the factor is an encouraged factor, “the court is authorized to depart if the applicable Guideline does not already take it into account.” Id. If the factor is a discouraged factor, or one already taken into account under the Guidelines, “the court should depart only if the factor is present to an exceptional degree or in some other way makes the" }, { "docid": "14713599", "title": "", "text": "at 426-27; United States v. Kenney, 283 F.3d 934, 936 (8th Cir.2002). We review the district court’s election to depart from the guidelines for abuse of discretion “because the decision to depart embodies the traditional exercise of discretion by the sentencing court.” Commentary to U.S.S.G. § 5K2.0 (citing Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). The abuse of discretion standard extends to our review of the district court’s determination as to “whether a given factor is present to a degree not adequately considered by the Sentencing Commission.” United States v. Lewis, 235 F.3d 394, 396 (8th Cir.2000). 18 U.S.C. § 3553(b) permits a sentencing court to impose a sentence outside 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 that should result in a sentence different from that described.” Id. The Sentencing Commission enumerated some of the factors that it believed were not adequately accounted for in the formulation of the Guidelines and might merit consideration as aggravating or mitigating circumstances. U.S.S.G. § 5K2.0 (explaining the rationale behind the factors listed in U.S.S.G. § 5K2.1-21). Extreme psychological injury is one of these specifically enumerated factors. U.S.S.G. § 5K2.3. U.S.S.G. § 5K2.0 is a “Grounds for Departure” policy statement that introduces the specifically enumerated factors and explains their application. This general policy statement endorses the double counting of a factor for an upward departure where that factor is taken into account elsewhere in the Guidelines, “... e.g., as a specific offense characteristic or other adjustment!),]” but where, “in light of unusual circumstances, the weight attached to that factor under the guidelines is inadequate or excessive.” Id. This court has previously relied on the general policy statement of § 5K2.0 to find double counting permissible in the context of departures. United States v. Hipenbecker, 115 F.3d 581, 584 (8th Cir.1997) (“because § 5K2.0 contemplates the simultaneous consideration of factors that may be considered elsewhere in the computation of" }, { "docid": "14194129", "title": "", "text": "445; Simmons, 343 F.3d at 78. We have not yet resolved whether this new standard of review applies to appeals pending before April 30, 2003 and in this case we are not called on to do so because we would affirm under either standard. See Simmons, 343 F.3d at 78. We find no fault with the District Court’s decision to depart. Section 5K2.0 permits departures if “ ‘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.’ ” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)(1)). Such circumstances will, of course, be rare. See Koon v. United States, 518 U.S. 81, 96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Tappin, 205 F.3d 536, 540 (2d Cir.2000); United States v. Merritt, 988 F.2d 1298, 1309 (2d Cir.1993). They “cannot, by their very nature, be comprehensively listed and analyzed in advance” and must be determined by the sentencing court “on a case-specific basis.” U.S.S.G. § 5K2.0. A circumstance that is “ ‘not ordinarily relevant’ in determining whether a sentence should be outside the applicable guideline range may be relevant ... if [it] is present to an unusual degree and distinguishes the ease from the ‘heartland’ cases covered by the guidelines.” Id. Where an unusual constellation of factors exists that removes any sentencing from the “heartland” cases, district courts are obligated to consider departures even though no one factor, standing alone, might justify an upward or downward departure. See U.S.S.G. § 5K2.0, cmt. (“The last paragraph of this policy statement sets forth the conditions under which an offender characteristic or other circumstance that is not ordinarily relevant to a departure from the applicable guideline range may be relevant .... The Commission does not foreclose the possibility of an extraordinary case that, because of a combination of such characteristics or circumstances, differs significantly from the ‘heartland’ cases covered by the guidelines in a way that is important to the statutory purposes of sentencing, even" }, { "docid": "23391164", "title": "", "text": "court found that McBroom had a total of two criminal history points based on three separate convictions for driving while intoxicated. U.S.S.G. § 4Al.l(e) (one of the convictions was not counted pursuant to U.S.S.G. § 4A1.2(e)). McBroom’s criminal history category was therefore II. U.S.S.G. Ch. 5, Pt. A. For a total offense level of thirteen and a criminal history category of II, the Sentencing Guidelines provide for a sentence of fifteen to twenty-one months in prison. Id. B. 1. A district court may depart from the sentence established by the applicable guideline 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 that should result in a sentence different from that described.” 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0, p.s. In determining whether a circumstance was adequately taken into consideration, the sentencing court shall consider “only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” 18 U.S.C. § 3553(b). In subpart 5K2 of the guidelines, the Commission identifies some of the factors that it did not take into account fully in formulating the guidelines. U.S.S.G. § 5K2.0, p.s. Some of these factors recognize that an upward departure may be warranted in certain circumstances, see, e.g., U.S.S.G. § 5K2.7, p.s. (upward departure may be warranted where the defendant’s conduct resulted in the significant disruption of a governmental function), while other factors recognize that a downward departure may sometimes be justified, see, e.g., U.S.S.G. § 5K2.10, p.s. (downward departure may be warranted where the victim’s wrongful conduct contributed significantly to provoking the offense behavior). The factors contained in subpart 5K2 are the so-called “encouraged factors.” If a potential departure factor is an encouraged factor, the sentencing court is authorized to depart if the applicable guideline does not already take it into account. Koon v. United States, -U.S. ——, —, 116 S.Ct. 2035, 2045,135 L.Ed.2d 392 (1996). In contrast, some characteristics are “not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline" }, { "docid": "21087779", "title": "", "text": "a guideline enhancement. In Mills, the defendant was charged with burglary. 1 F.3d at 417. The Sixth Circuit held that it was an error to assign the base offense level for an aggravated assault to the crime of burglary because “assault was not the gist, of [the] offense.” Id. at 422. In the instant matter, the gist or gravamen of. the crimes alleged in counts 1 and 4 is the mailing of a destructive device with the intent to kill. The district court did not clearly err in finding that Collins intended to murder Trooper Gager. VI DEPARTURE FROM THE GUIDELINES WAS BASED ON UNUSUAL CIRCUMSTANCES The district court departed upward from the base offense level set forth in U.S.S.G. § 2A2.1(b)(l)(A). Section 2A2.1(b)(l)(A) is applicable when the court finds that the defendant attempted to murder the victim. Section 2A2.1(b)(l)(A) provides for an increase of four levels for a permanent or life threatening injury. The district court departed upward eight offense levels. Congress has authorized a district court to depart upward if it identifies “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.” 18 U.S.C. § 3553(b). Pursuant to U.S.S.G. § 5K2.0 a district court may depart on the basis of a factor expressly taken into consideration by the guidelines if “the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate.” Collins contends that the district court abused its discretion in departing upward because, in adopting section 2A2.1(b)(l)(A), the Sentencing Commission considered the appropriate punishment for inflicting permanent and life threatening in juries from an attempt to murder the victim. 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, 2046-48, 135 L.Ed.2d 392 (1996). The district court departed from the applicable guideline because Trooper Gager suffered “from dreadful permanent injuries.” The record shows that the injuries" }, { "docid": "16460808", "title": "", "text": "that an upward departure was therefore appropriate under § 5K2.6, which provides grounds for an upward departure if “a weapon or dangerous instrumentality was used or possessed in the commission of the offense.” To determine the proper extent of departure, the judge looked to § 2B3.1, the guideline applicable to robbery. Section (b)(2) of the guideline directs a five-level enhancement “if a firearm was brandished, displayed, or possessed” during the offense. The judge found that this was an appropriate amount of enhancement, since Billingsley “had previously used that firearm in the carjacking” of Mr. Patten’s Pontiac, and increased the defendant’s offense level from a fifteen to a twenty. Bill-ingsley claims on appeal that the judge erred in looking to § 2B3.1 for guidance in determining the appropriate amount of enhancement to apply. The sentencing court’s decision to depart from the guidelines is reviewed under an abuse of discretion standard. Koon v. United States, — U.S. -,-, 116 S.Ct. 2035, 2047-48, 135 L.Ed.2d 392 (1996); United States v. Purchess, 107 F.3d 1261, 1271 (7th Cir.1997); see United States v. Wyatt, 102 F.3d 241, 246 n. 7 (7th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1325, 137 L.Ed.2d 486 (1997). “A sentencing court may depart from the Guidelines if it ‘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.’ ” United States v. Hogan, 54 F.3d 336, 341 (7th Cir.1995) (quoting 18 U.S.C. § 3553(b)). “When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.” U.S.S.G. Ch.l, Pt.A, intro, comment. 4(b). As the Supreme Court stated in Koon, “[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.” — U.S. at —, 116 S.Ct. at 2046. Where, as here, we review the extent of the departure, as opposed to" } ]

[ { "docid": "22603636", "title": "", "text": "within the scope of Eighth Amendment protection.” Id., at 915. Nor was there any substantive violation of the Due Process Clause. The court noted that “[p]addling of recalcitrant children has long been an accepted method of promoting good behavior and instilling notions of responsibility and decorum into the mischievous heads of school children.” Id., at 917. The court refused to examine instances of punishment individually: “We think it a misuse of our judicial power to determine, for example, whether a teacher has acted arbitrarily in paddling a particular child for certain behavior or whether in a particular instance of misconduct five licks would have been a more appropriate punishment than ten licks. . . .” Ibid. We granted certiorari, limited to the questions of cruel and unusual punishment and procedural due process. 425 U. S. 990. II In addressing the scope of the Eighth Amendment’s prohibition on cruel and unusual punishment, this Court has found it useful to refer to “[traditional common-law concepts,” Powell v. Texas, 392 U. S. 514, 535 (1968) (plurality opinion), and to the “attitude[s] which our society has traditionally taken.” Id., at 531. So, too, in defining the require ments of procedural due process under the Fifth and Fourteenth Amendments, the Court has been attuned to what “has always been the law of the land,” United States v. Barnett, 376 U. S. 681, 692 (1964), and to “traditional ideas of fair procedure.” Greene v. McElroy, 360 U. S. 474, 508 (1959). We therefore begin by examining the way in which our traditions and our laws have responded to the use of corporal punishment in public schools. The use of corporal punishment in this country as a means of disciplining schoolchildren dates back to the colonial period. It has survived the transformation of primary and secondary education from the colonials' reliance on optional private arrangements to our present system of compulsory education and dependence on public schools. Despite the general abandonment of corporal punishment as a means of punishing criminal offenders, the practice continues to play a role in the public education of schoolchildren in most parts" } ]

[ { "docid": "22675293", "title": "", "text": "offers some support for such a claim. In that opinion, Justice Harlan referred to the “liberty” that the Fourteenth Amendment protects as including “a freedom from all substantial arbitrary impositions and purposeless restraints” and also as recognizing that “certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Id., at 543. The “certain interests” to which Justice Harlan referred may well be similar (perhaps identical) to the rights, liberties, or interests that the Court today, as in the past, regards as “fundamental.” Ante, at 720; see also Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992); Eisenstadt v. Baird, 405 U. S. 438 (1972); Griswold v. Connecticut, 381 U. S. 479 (1965); Rochin v. California, 342 U. S. 165 (1952); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942). Justice Harlan concluded that marital privacy was such a “special interest.” He found in the Constitution a right of “privacy of the home” — with the home, the bedroom, and “intimate details of the marital relation” at its heart — by examining the protection that the law had earlier provided for related, but not identical, interests described by such words as “privacy,” “home,” and “family.” 367 U. S., at 548, 552; cf. Casey, supra, at 851. The respondents here essentially ask us to do the same. They argue that one can find a “right to die with dignity” by examining the protection the law has provided for related, but not identical, interests relating to personal dignity, medical treatment, and freedom from state-inflicted pain. See Ingraham v. Wright, 430 U. S. 651 (1977); Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261 (1990); Casey, supra. I do not believe, however, that this Court need or now should decide whether or a not such a right is “fundamental.” That is because, in my view, the avoidance of severe physical pain (connected with death) would have to constitute an essential part of any successful claim and because, as Justice O’Connor points out, the laws before us do not force a dying person" }, { "docid": "22385827", "title": "", "text": "jurisdiction? If not, may the State save the statute by announcing that it will only enforce the law against homosexuals? The two questions merit separate discussion. I Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Griswold v. Connecticut, 381 U. S. 479 (1965). Moreover, this protection extends to intimate choices by unmarried as well as married persons. Carey v. Population Services International, 431 U. S. 678 (1977); Eisenstadt v. Baird, 405 U. S. 438 (1972). In consideration of claims of this kind, the Court has emphasized the individual interest in privacy, but its decisions have actually been animated by an even more fundamental concern. As I wrote some years ago: “These cases do not deal with the individual’s interest in protection from unwarranted public attention, comment, or exploitation. They deal, rather, with the individual’s right to make certain unusually important decisions that will affect his own, or his family’s, destiny. The Court has referred to such decisions as implicating ‘basic values,’ as being ‘fundamental,’ and as being dignified by history and tradition. The character of the Court’s language in these cases brings to mind the origins of the American heritage of freedom — the abiding interest in individual liberty that makes certain state intrusions on the citizen’s right to decide how he will live his own life intolerable. Guided by history, our tradition of respect for the dignity of individual choice in matters of conscience and the restraints implicit in the federal system, federal judges have accepted the responsibility for recognition and protection of these rights in appropriate cases.” Fitzgerald v. Porter Memorial Hospital, 523 F. 2d 716, 719-720 (CA7 1975) (footnotes" }, { "docid": "22396133", "title": "", "text": "a child whom the marital parents do not wish to raise as their own. It seems unfair for those who disagree with our holding to include among their criticisms that we have not extended the holding more broadly. Justice O’Connor, with whom Justice Kennedy joins, concurring in part. I concur in all but footnote 6 of Justice Scalia’s opinion. This footnote sketches a mode of historical analysis to be used when identifying liberty interests protected by the Due Process Clause of the Fourteenth Amendment that may be somewhat inconsistent with our past decisions in this area. See Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972). On occasion the Court has characterized relevant traditions protecting asserted rights at levels of generality that might not be “the most specific level” available. Ante, at 127-128, n. 6. See Loving v. Virginia, 388 U. S. 1, 12 (1967); Turner v. Safley, 482 U. S. 78, 94 (1987); cf. United States v. Stanley, 483 U. S. 669, 709 (1987) (O’Connor, J., concurring in part and dissenting in part). I would not foreclose the unanticipated by the prior imposition of a single mode of historical analysis. Poe v. Ullman, 367 U. S. 497, 542, 544 (1961) (Harlan, J., dissenting). Justice Stevens, concurring in the judgment. As I understand this case, it raises two different questions about the validity of California’s statutory scheme. First, is Cal. Evid. Code Ann. §621 (West Supp. 1989) unconstitutional because it prevents Michael and Victoria from obtaining a judicial determination that he is her biological father-even if no legal rights would be affected by that determination? Second, does the California statute deny appellants a fair opportunity to prove that Victoria’s best interests would be served by granting Michael visitation rights? On the first issue I agree with Justice Scalia that the Federal Constitution imposes no obligation upon a State to “declare facts unless some legal consequence hinges upon the requested declaration.” Ante, at 126. “The actions of judges neither create nor sever genetic bonds.” Lehr v. Robertson, 463 U. S. 248, 261 (1983). On" }, { "docid": "20362421", "title": "", "text": "of fair notice even if no fundamental rights had been at stake. But petitioners’ lawful, off-duty sexual conduct clearly implicates the “fundamental . . . right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.” Stanley v. Georgia, 394 U. S. 557, 564 (1969). Without identifying the precise contours of this right, we have recognized that it includes a broad range of private choices involving family life and personal autonomy. See, e. g., Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 426-427 (1983) (abortion); Santosky v. Kramer, 455 U. S. 745, 753 (1982) (child raising); Zablocki v. Redhail, 434 U. S. 374, 383-385 (1978) (marriage); Carey v. Population Services International, 431 U. S. 678, 684-685 (1977) (contraception); Moore v. City of East Cleveland, 431 U. S. 494, 499 (1977) (plurality opinion) (right to determine family living arrangements); Cleveland Board of Education v. LaFleur, 414 U. S. 632, 639-640 (1974) (pregnancy); Roe v. Wade, 410 U. S. 113, 152-153 (1973) (abortion); Eisenstadt v. Baird, 405 U. S. 438, 453-454 (1972) (contraception); id., at 460, 463-465 (White, J., concurring in result); Loving v. Virginia, 388 U. S. 1, 12 (1967) (marriage); Griswold v. Connecticut, 381 U. S. 479, 483-486 (1965) (marital privacy); Prince v. Massachusetts, 321 U. S. 158, 166 (1944) (family relationships); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541-542 (1942) (procreation); Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925) (child rearing and education); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (same). These and other cases reflect the view that constitutionally protected liberty includes freedom from governmental disclosure of or interference with certain kinds of intensely personal decisions. The intimate, consensual, and private relationship between petitioners involved both the “interest in avoiding disclosure of personal matters, and . . . the interest in independence in making certain kinds of important decisions,” Whalen v. Roe, 429 U. S. 589, 599-600 (1977), that our cases have recognized as fundamental. Therefore, the notice requirement of the Due Process Clause demands particular precision in this case. See" }, { "docid": "22396152", "title": "", "text": "Skinner v. Oklahoma, 316 U. S. 535, 541 (1942); Prince v. Massachusetts, 321 U. S. 158, 166 (1944), and I think I am safe in saying that no one doubts the wisdom or validity of those decisions. Where the interest under consideration is a parent-child relationship, we need not ask, over and over again, whether that interest is one that society traditionally protects. Thus, to describe the issue in this case as whether the relationship existing between Michael and Victoria “has been treated as a protected family unit under the historic practices of our society, or whether on any other basis it has been accorded special protection,” ante, at 124, is to reinvent the wheel. The better approach — indeed, the one commanded by our prior cases and by common sense — is to ask whether the specific parent-child relationship under consideration is close enough to the interests that we already have protected to be deemed an aspect of “liberty” as well. On the facts before us, therefore, the question is not what “level of generality” should be used to describe the relationship between Michael and Victoria, see ante, at 127, n. 6, but whether the relationship under consideration is sufficiently substantial to qualify as a liberty interest under our prior cases. On four prior occasions, we have considered whether unwed fathers have a constitutionally protected interest in their relationships with their children. See Stanley v. Illinois, 405 U. S. 645 (1972); Quilloin v. Walcott, 434 U. S. 246 (1978); Caban v. Mohammed, 441 U. S. 380 (1979); and Lehr v. Robertson, 463 U. S. 248 (1983). Though different in factual and legal circumstances, these cases have produced a unifying theme: although an unwed father’s biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so. “When an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘com[ing] forward to participate in the rearing of his child,’... his interest in personal contact with his" }, { "docid": "22319156", "title": "", "text": "Griswold v. Connecticut, 381 U. S. 479 (1965). In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, 405 U. S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights, ibid. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own: “It is true that in Griswold the right of privacy in question inhered in the marital relationship. ... If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Id., at 453. The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade, 410 U. S. 113 (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court held the woman’s rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once" }, { "docid": "22689840", "title": "", "text": "the second Justice Harlan recognized: “[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” Poe v. UUman, supra, at 543 (opinion dissenting from dismissal on jurisdictional grounds). Justice Harlan wrote these words in addressing an issue the full Court did not reach in Poe v. Ullman, but the Court adopted his position four Terms later in Griswold v. Connecticut, supra. In Griswold, we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. See Eisenstadt v. Baird, 405 U. S. 438 (1972). Constitutional protection was extended to the sale and distribution of contraceptives in Carey v. Population Services International, supra. It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v. East Cleveland, 431 U. S. 494 (1977); Eisenstadt v. Baird, supra; Loving v. Virginia, supra; Griswold v. Connecticut, supra; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra, as well as bodily integrity, see, e. g., Washington v. Harper, 494 U. S. 210, 221-222 (1990); Winston v. Lee, 470 U. S. 753 (1985); Rochin v. California, 342 U." }, { "docid": "22396112", "title": "", "text": "501 (1965) (Harlan, J., concurring in judgment). This insistence that the asserted liberty interest be rooted in history and tradition is evident, as elsewhere, in our cases according constitutional protection to certain parental rights. Michael reads the landmark case of Stanley v. Illinois, 405 U. S. 645 (1972), and the subsequent cases of Quilloin v. Walcott, 434 U. S. 246 (1978), Caban v. Mohammed, 441 U. S. 380 (1979), and Lehr v. Robertson, 463 U. S. 248 (1983), as establishing that a liberty interest is created by biological fatherhood plus an established parental relationship-factors that exist in the present case as well. We think that distorts the rationale of those cases. As we view them, they rest not upon such isolated factors but upon the historic respect — indeed, sanctity would not be too strong a term — traditionally accorded to the relationships that develop within the unitary family. See Stanley, supra, at 651; Quilloin, supra, at 254-255; Caban, supra, at 389; Lehr, supra, at 261. In Stanley, for example, we forbade the destruction of such a family when, upon the death of the mother, the State had sought to remove children from the custody of a father who had lived with and supported them and their mother for 18 years. As Justice Powell stated for the plurality in Moore v. East Cleveland, supra, at 503: “Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.” Thus, the legal issue in the present case reduces to whether the relationship between persons in the situation of Michael and Victoria has been treated as a protected family unit under the historic practices of our society, or whether on any other basis it has been accorded special protection. We think it impossible to find that it has. In fact, quite to the contrary, our traditions have protected the marital family (Gerald, Carole, and the child they acknowledge to be theirs) against the sort of claim Michael asserts. The presumption of legitimacy was a fundamental principle" }, { "docid": "22396132", "title": "", "text": "Palko v. Connecticut, 302 U. S. 319, 325 (1937). Justice Brennan chides us for thus limiting our holding to situations in which, as here, the husband and wife wish to raise her child jointly. The dissent believes that without this limitation we would be unable to “rely on the State’s asserted interest in protecting the ‘unitary family’ in denying that Michael and Victoria have been deprived of liberty.” Post, at 147. As we have sought to make clear, however, and as the dissent elsewhere seems to understand, see post, at 139,140-141,145,147, we rest our decision not upon our independent “balancing” of such interests, but upon the absence of any constitutionally protected right to legal parentage on the part of an adulterous natural father in Michael’s situation, as evidenced by long tradition. That tradition reflects a “balancing” that has already been made by society itself. We limit our pronouncement to the relevant facts of this case because it is at least possible that our traditions lead to a different conclusion with regard to adulterous fathering of a child whom the marital parents do not wish to raise as their own. It seems unfair for those who disagree with our holding to include among their criticisms that we have not extended the holding more broadly. Justice O’Connor, with whom Justice Kennedy joins, concurring in part. I concur in all but footnote 6 of Justice Scalia’s opinion. This footnote sketches a mode of historical analysis to be used when identifying liberty interests protected by the Due Process Clause of the Fourteenth Amendment that may be somewhat inconsistent with our past decisions in this area. See Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972). On occasion the Court has characterized relevant traditions protecting asserted rights at levels of generality that might not be “the most specific level” available. Ante, at 127-128, n. 6. See Loving v. Virginia, 388 U. S. 1, 12 (1967); Turner v. Safley, 482 U. S. 78, 94 (1987); cf. United States v. Stanley, 483 U. S. 669, 709 (1987) (O’Connor, J., concurring" }, { "docid": "22125778", "title": "", "text": "colorable justification for applying the statute to married couples. In Eisenstadt v. Baird, 405 U. S. 438 (1972), Justice White concluded that a similar Massachusetts statute was invalid as applied to a person whom the record did not identify as either married or unmarried, id., at 464-465, and in Carey v. Population Services International, 431 U. S. 678 (1977), he subscribed to this explanation of the holdings in Griswold and Eisenstadt: “The fatal fallacy in [the appellants’] argument is that it overlooks the underlying premise of those decisions that the Constitution protects ‘the right of the individual ... to be free from unwarranted governmental intrusion into . . . the decision whether to bear or beget a child.’ [Eisenstadt v. Baird, 405 U. S.] at 453. Griswold did state that by ‘forbidding the use of contraceptives rather than regulating their manufacture or sale,’ the Connecticut statute there had ‘a maximum destructive impact’ on privacy rights. 381 U. S., at 485. This intrusion into ‘the sacred precincts of marital bedrooms’ made that statute particularly ‘repulsive.’ Id., at 485-486. But subsequent decisions have made clear that the constitutional protection of individual autonomy in matters of childbearing is not dependent on that element. Eisenstadt v. Baird, holding that the protection is not limited to married couples, characterized the protected right as the ‘decision whether to bear or beget a child.’ 405 U. S., at 453 (emphasis added). Similarly, Roe v. Wade, held that the Constitution protects ‘a woman’s decision whether or not to terminate her pregnancy.’ 410 U. S., at 153 (emphasis added). See also Whalen v. Roe, [429 U. S. 589,] 599-600, and n. 26. These decisions put Griswold in proper perspective. Griswold may no longer be read as holding only that a State may not prohibit a married couple’s use of contraceptives. Read in light of its progeny, the teaching of Griswold is that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State.” 431 U. S., at 687; id., at 702 (White, J., concurring in pertinent part and concurring in result). Thus, the aspect of" }, { "docid": "22396146", "title": "", "text": ". . purposely left to gather meaning from experience. . . . [T]hey relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.’” Board of Regents of State Colleges v. Roth, 408 U. S. 564, 571 (1972), quoting Na tional Ins. Co. v. Tidewater Co., 337 U. S. 582, 646 (1949) (Frankfurter, J., dissenting). It is not that tradition has been irrelevant to our prior decisions. Throughout our decisionmaking in this important area runs the theme that certain interests and practices — freedom from physical restraint, marriage, childbearing, childrearing, and others — form the core of our definition of “liberty.” Our solicitude for these interests is partly the result of the fact that the Due Process Clause would seem an empty promise if it did not protect them, and partly the result of the historical and traditional importance of these interests in our society. In deciding cases arising under the Due Process Clause, therefore, we have considered whether the concrete limitation under consideration impermissibly impinges upon one of these more generalized interests. Today’s plurality, however, does not ask whether parenthood is an interest that historically has received our attention and protection; the answer to that question is too clear for dispute. Instead, the plurality asks whether the specific variety of parenthood under consideration — a natural father’s relationship with a child whose mother is married to another man — has enjoyed such protection. If we had looked to tradition with such specificity in past cases, many a decision would have reached a different result. Surely the use of contraceptives by unmarried couples, Eisenstadt v. Baird, 405 U. S. 438 (1972), or even by married couples, Griswold v. Connecticut, 381 U. S. 479 (1965); the freedom from corporal punishment in schools, Ingraham v. Wright, 430 U. S. 651 (1977); the freedom from an arbitrary transfer from a prison to a psychiatric institution, Vitek v. Jones, 445 U. S. 480 (1980); and even the right to raise one’s natural but illegitimate children, Stanley v. Illinois," }, { "docid": "22793872", "title": "", "text": "(right to vote); Douglas v. California, 372 U. S. 353 (1963); and Griffin v. Illinois, 351 U. S. 12 (1956) (right to fair access to criminal process). Under the rubric of the fundamental right of privacy, we have recognized that individuals have freedom from unjustified governmental interference with personal decisions involv ing marriage, Zablocki v. Redhail, 434 U. S. 374 (1978); Loving v. Virginia, 388 U. S. 1 (1967); procreation, Skinner v. Okahoma ex rel. Williamson, 316 U. S. 535 (1942); contraception, Carey v. Population Services International, 431 U. S. 678 (1977); Eisenstadt v. Baird, 405 U. S. 438 (1972); Griswold v. Connecticut, 381 U. S. 479 (1965); abortion, Roe v. Wade, 410 U. S. 113 (1973); family relationships, Prince v. Massachusetts, 321 U. S. 158 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U. S. 510 (1925); Meyer v. Nebraska, 262 U. S. 390 (1923). See also Moore v. East Cleveland, 431 U. S. 494 (1977). As the present cases illustrate, a requirement of proof of discriminatory intent seriously jeopardizes the free exercise of the fundamental right to vote. Although the right to vote is indistinguishable for present purposes from the other fundamental rights our cases have recognized, see n. 9, supra, surely the plurality would not require proof of discrimina^ tory purpose in those cases. The plurality fails to articulate why the right to vote should receive such singular treatment. Furthermore, the plurality refuses to recognize the disutility of requiring proof of discriminatory purpose in fundamental rights cases. For example, it would make no sense to require such a showing when the question is whether a state statute regulating abortion violates the right of personal choice recognized in Roe v. Wade, supra. The only logical inquiry is whether, regardless of the legislature’s motive, the statute has the effect of infringing that right. See, e. g., Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52 (1976). Judge Wisdom of the Court of Appeals below recognized this distinction in a companion case, see Nevett v. Sides, 571 F. 2d 209, 231-234 (CA5 1978) (specially" }, { "docid": "22675143", "title": "", "text": "U. S. 115, 125 (1992) (Due Process Clause “protects individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them’ ”) (quot ing Daniels v. Williams, 474 U. S. 327, 331 (1986)). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. Reno v. Flores, 507 U. S. 292, 301-302 (1993); Casey, 505 U. S., at 851. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U. S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942); to direct the education and upbringing of one's children, Meyer v. Nebraska, 262 U. S. 390 (1923); Pierce v. Society of Sisters, 268 U. S. 510 (1925); to marital privacy, Griswold v. Connecticut, 381 U. S. 479 (1965); to use contraception, ibid.; Eisenstadt v. Baird, 405 U. S. 438 (1972); to bodily integrity, Rochin v. California, 342 U. S. 165 (1952), and to abortion, Casey, supra. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment. Cruzan, 497 U. S., at 278-279. But we “ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins, 503 U. S., at 125. By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore “exercise the utmost care whenever we are asked to break new ground in this field,” ibid., lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court, Moore, 431 U. S., at 502 (plurality opinion). Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process" }, { "docid": "22690032", "title": "", "text": "110, 122 (1989) (plurality opinion) (citing the language from Snyder). These expressions are admittedly not precise, but our decisions implementing this notion of “fonda-mental” rights do not afford any more elaborate basis on which to base such a classification. In construing the phrase “liberty” incorporated in the Due Process Clause of the Fourteenth Amendment, we have recognized that its meaning extends beyond freedom from physical restraint. In Pierce v. Society of Sisters, 268 U. S. 510 (1925), we held that it included a parent’s right to send a child to private school; in Meyer v. Nebraska, 262 U. S. 390 (1923), we held that it included a right to teach a foreign language in a parochial school. Building on these cases, we have held that the term “liberty” includes a right to marry, Loving v. Virginia, 388 U. S. 1 (1967); a right to procreate, Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942); and a right to use contraceptives, Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972). But a reading of these opinions makes clear that they do not endorse any all-encompassing “right of privacy.” In Roe v. Wade, the Court recognized a “guarantee of personal privacy” which “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” 410 U S., at 152-153. We are now of the view that, in terming this right fundamental, the Court in Roe read the earlier opinions upon which it based its decision much too broadly. Unlike marriage, procreation, and contraception, abortion “involves the purposeful termination of a potential life.” Harris v. McRae, 448 U. S. 297, 325 (1980). The abortion decision must therefore “be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy.” Thornburgh v. American College of Obstetricians and Gynecologists, supra, at 792 (White, J., dissenting). One cannot ignore the fact that a woman is not isolated in her pregnancy, and that the decision to abort necessarily involves the destruction" }, { "docid": "22396147", "title": "", "text": "the concrete limitation under consideration impermissibly impinges upon one of these more generalized interests. Today’s plurality, however, does not ask whether parenthood is an interest that historically has received our attention and protection; the answer to that question is too clear for dispute. Instead, the plurality asks whether the specific variety of parenthood under consideration — a natural father’s relationship with a child whose mother is married to another man — has enjoyed such protection. If we had looked to tradition with such specificity in past cases, many a decision would have reached a different result. Surely the use of contraceptives by unmarried couples, Eisenstadt v. Baird, 405 U. S. 438 (1972), or even by married couples, Griswold v. Connecticut, 381 U. S. 479 (1965); the freedom from corporal punishment in schools, Ingraham v. Wright, 430 U. S. 651 (1977); the freedom from an arbitrary transfer from a prison to a psychiatric institution, Vitek v. Jones, 445 U. S. 480 (1980); and even the right to raise one’s natural but illegitimate children, Stanley v. Illinois, 405 U. S. 645 (1972), were not “interest[s] traditionally protected by our society,” ante, at 122, at the time of their consideration by this Court. If we had asked, therefore, in Eisen-stadt, Griswold, Ingraham, Vitek, or Stanley itself whether the specific interest under consideration had been traditionally protected, the answer would have been a resounding “no.” That we did not ask this question in those cases highlights the novelty of the interpretive method that the plurality opinion employs today. The plurality’s interpretive method is more than novel; it is misguided. It ignores the good reasons for limiting the role of “tradition” in interpreting the Constitution’s deliberately capacious language. In the plurality’s constitutional universe, we may not take notice of the fact that the original reasons for the conclusive presumption of paternity are out of place in a world in which blood tests can prove virtually beyond a shadow of a doubt who sired a particular child and in which the fact of illegitimacy no longer plays the burdensome and stigmatizing role it once did. Nor," }, { "docid": "22396148", "title": "", "text": "405 U. S. 645 (1972), were not “interest[s] traditionally protected by our society,” ante, at 122, at the time of their consideration by this Court. If we had asked, therefore, in Eisen-stadt, Griswold, Ingraham, Vitek, or Stanley itself whether the specific interest under consideration had been traditionally protected, the answer would have been a resounding “no.” That we did not ask this question in those cases highlights the novelty of the interpretive method that the plurality opinion employs today. The plurality’s interpretive method is more than novel; it is misguided. It ignores the good reasons for limiting the role of “tradition” in interpreting the Constitution’s deliberately capacious language. In the plurality’s constitutional universe, we may not take notice of the fact that the original reasons for the conclusive presumption of paternity are out of place in a world in which blood tests can prove virtually beyond a shadow of a doubt who sired a particular child and in which the fact of illegitimacy no longer plays the burdensome and stigmatizing role it once did. Nor, in the plurality’s world, may we deny “tradition” its full scope by pointing out that the rationale for the conventional rule has changed over the years, as has the rationale for Cal. Evid. Code Ann. § 621 (West Supp. 1989); instead, our task is simply to identify a rule denying the asserted interest and not to ask whether the basis for that rule — which is the true reflection of the values undergirding it — has changed too often or too recently to call the rule embodying that rationale a “tradition.” Moreover, by describing the decisive question as whether Michael’s and Victoria’s interest is one that has been “traditionally protected by our society,” ante, at 122 (emphasis added), rather than one that society traditionally has thought important (with or without protecting it), and by suggesting that our sole function is to “discern the society’s views,” ante, at 128, n. 6 (emphasis added), the plurality acts as if the only pur pose of the Due Process Clause is to confirm the importance of interests already protected" }, { "docid": "22116647", "title": "", "text": "manages to avoid invalidating the testing provision on what should have been noncontroversial constitutional grounds; having done so, however, the plurality rushes headlong into a much deeper constitutional thicket, brushing past an obvious basis for upholding §188.029 in search of a pretext for scuttling the trimester framework. Evidently, from the plurality’s perspective, the real problem with the Court of Appeals’ construction of § 188.029 is not that it raised a constitutional difficulty, but that it raised the wrong constitutional difficulty— one not implicating Roe. The plurality has remedied that, traditional canons of construction and judicial forbearance notwithstanding. B Having set up the conflict between § 188.029 and the Roe trimester framework, the plurality summarily discards Roe’s analytic core as “‘unsound in principle and unworkable in practice.’” Ante, at 518, quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 546 (1985). This is so, the plurality claims, because the key elements of the framework do not appear in the text of the Constitution, because the framework more closely resembles a regulatory code than a body of constitutional doctrine, and because under the framework the State’s interest in potential human life is considered compelling only after viability, when, in fact, that interest is equally compelling throughout pregnancy. Ante, at 519-520. The plurality does not bother to explain these alleged flaws in Roe. Bald assertion masquerades as reasoning. The object, quite clearly, is not to persuade, but to prevail. 1 The plurality opinion is far more remarkable for the arguments that it does not advance than for those that it does. The plurality does not even mention, much less join, the true jurisprudential debate underlying this case: whether the Constitution includes an “unenumerated” general right to privacy as recognized in many of our decisions, most notably Griswold v. Connecticut, 381 U. S. 479 (1965), and Roe, and, more specifically, whether, and to what extent, such a right to privacy extends to matters of childbearing and family life, including abortion. See, e. g., Eisenstadt v. Baird, 405 U. S. 438 (1972) (contraception); Loving v. Virginia, 388 U. S. 1 (1967) (marriage);" }, { "docid": "22116648", "title": "", "text": "a body of constitutional doctrine, and because under the framework the State’s interest in potential human life is considered compelling only after viability, when, in fact, that interest is equally compelling throughout pregnancy. Ante, at 519-520. The plurality does not bother to explain these alleged flaws in Roe. Bald assertion masquerades as reasoning. The object, quite clearly, is not to persuade, but to prevail. 1 The plurality opinion is far more remarkable for the arguments that it does not advance than for those that it does. The plurality does not even mention, much less join, the true jurisprudential debate underlying this case: whether the Constitution includes an “unenumerated” general right to privacy as recognized in many of our decisions, most notably Griswold v. Connecticut, 381 U. S. 479 (1965), and Roe, and, more specifically, whether, and to what extent, such a right to privacy extends to matters of childbearing and family life, including abortion. See, e. g., Eisenstadt v. Baird, 405 U. S. 438 (1972) (contraception); Loving v. Virginia, 388 U. S. 1 (1967) (marriage); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942) (procreation); Pierce v. Society of Sisters, 268 U. S. 510 (1925) (childrearing). These are questions of unsurpassed significance in this Court’s interpretation of the Constitution, and mark the battleground upon which this case was fought, by the parties, by the United States as amicus on behalf of petitioners, and by an unprecedented number of amici. On these grounds, abandoned by the plurality, the Court should decide this case. But rather than arguing that the text of the Constitution makes no mention of the right to privacy, the plurality complains that the critical elements of the Roe framework — tri mesters and viability — do not appear in the Constitution and are, therefore, somehow inconsistent with a Constitution cast in general terms. Ante, at 518-519. Were this a true concern, we would have to abandon most of our constitutional jurisprudence. As the plurality well knows, or should know, the “critical elements” of countless constitutional doctrines nowhere appear in the Constitution’s text. The Constitution makes no" }, { "docid": "22689841", "title": "", "text": "we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. See Eisenstadt v. Baird, 405 U. S. 438 (1972). Constitutional protection was extended to the sale and distribution of contraceptives in Carey v. Population Services International, supra. It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v. East Cleveland, 431 U. S. 494 (1977); Eisenstadt v. Baird, supra; Loving v. Virginia, supra; Griswold v. Connecticut, supra; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra, as well as bodily integrity, see, e. g., Washington v. Harper, 494 U. S. 210, 221-222 (1990); Winston v. Lee, 470 U. S. 753 (1985); Rochin v. California, 342 U. S. 165 (1952). The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office. As Justice Harlan observed: “Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam" }, { "docid": "22396153", "title": "", "text": "generality” should be used to describe the relationship between Michael and Victoria, see ante, at 127, n. 6, but whether the relationship under consideration is sufficiently substantial to qualify as a liberty interest under our prior cases. On four prior occasions, we have considered whether unwed fathers have a constitutionally protected interest in their relationships with their children. See Stanley v. Illinois, 405 U. S. 645 (1972); Quilloin v. Walcott, 434 U. S. 246 (1978); Caban v. Mohammed, 441 U. S. 380 (1979); and Lehr v. Robertson, 463 U. S. 248 (1983). Though different in factual and legal circumstances, these cases have produced a unifying theme: although an unwed father’s biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so. “When an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘com[ing] forward to participate in the rearing of his child,’... his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point it may be said that he ‘act[s] as a father toward his children.’” Lehr v. Robertson, supra, at 261, quoting Caban v. Mohammed, supra, at 392, 389, n. 7. This commitment is why Mr. Stanley and Mr. Caban won; why Mr. Quilloin and Mr. Lehr lost; and why Michael H. should prevail today. Michael H. is almost certainly Victoria D.’s natural father, has lived with her as her father, has contributed to her support, and has from the beginning sought to strengthen and maintain his relationship with her. Claiming that the intent of these cases was to protect the “unitary family,” ante, at 123, the plurality waves Stanley, Quilloin, Caban, and Lehr aside. In evaluating the plurality’s dismissal of these precedents, it is essential to identify its conception of the “unitary family.” If, by acknowledging that Stanley et al. sought to protect “the relationships that develop within the unitary family,” ibid., the plurality meant only to describe the kinds of relationships that develop" } ]

[ { "docid": "6345048", "title": "", "text": "DELEHANT, District Judge. The plaintiff has instituted this action in which he prays for judgment in the sum of six hundred dollars, being three times the amount of certain alleged overcharges exacted from the plaintiff by the defendant for the use and occupancy of a certain controlled housing accommodation, together with attorney’s fees and costs. Housing and Rent Act of 1947, as amended, Title 50 U.S.C.A.Appendix, § 1881 et seq. The jurisdiction is premised on Title 50 U.S. C.A.Appendix, § 1895. The defendant has moved to dismiss the action on two grounds; first, because the amount in controversy is less than $3,000.00 exclusive of interest and costs; secondly, for failure of the complaint to state a claim upon which relief can be granted. The motion has been presented by oral argument of counsel. The defendant has emphasized her contention that the manifest'absence of a controversy in the jurisdictional amount prescribed under Title 28 U.S.C.A. § 1332 defeats this court’s jurisdiction over the case. Her counsel, recognizing that it was consistently held that the sum or value of a matter in controversy was not essential to jurisdiction of comparable actions by tenants or purchasers under the Emergency Price Control Act of 1942, Title 50 U.S. C.A.Appendix, § 901 et seq., see especially Section 925(e); Powell v. Rhine, D.C.Pa., 71 F.Supp. 953; Strickland v. Sellers, D.C. Tex., 78 F.Supp. 274; City of Newark v. Horns, D.C.N.J., 62 F.Supp. 310; Bowles v. Franceschini, 1 Cir., 145 F.2d 510, contends that a distinction should be recognized between the two acts. The distinction is said to lie in this, that under the present statute, the nature of the recovery, beyond costs and attorney’s fees, is defined as liquidated damages and jurisdiction is conferred upon “any Federal, State, or Territorial court of competent jurisdiction”, whereas, under the now expired Emergency Price Control Act of 1942, the nature of the recovery was not explicitly defined, and the jurisdiction was committed to “any court of competent jurisdiction.” The court can perceive no real distinction on either ground. It is not explained, nor can the court understand, how the" } ]

[ { "docid": "1426585", "title": "", "text": "claims as proceedings in rem to avoid the Tax Injunction Act would be unavailing. The second statute upon which plaintiffs rely for their claim of exclusive federal jurisdiction is 28 U.S.C. § 1355, which provides, in relevant part: The district courts shall have original jurisdiction, exclusive of the courts of the States, of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress. Plaintiffs assert that the damages which they seek under 46 U.S.C. § 596 constitute a penalty under 28 U.S.C. § 1355 which divests the New Jersey courts of jurisdiction to entertain that portion of their claim. 46 U.S.C. § 596 provides, in relevant part: Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days’ pay for each and every day during which payment is delayed beyond the respective periods, which sum shall be recoverable as wages in any claim made before the court. . . . The state replies that the double-wage damages recoverable under 46 U.S.C. § 596 are not a “penalty” within the meaning of section 1355 and that section 1355 only applies to suits brought by the government. The authorities are divided on the question of whether section 1355 reaches private actions for damages. Compare 13 Wright & Miller, Federal Practice and Procedure § 3578, at 514 (1975) (“more usual modern view is that [§ 1355] extends only to suits by a public officer to recover a sum of money that will be paid into the public treasury”) with 1 Moore’s Federal Practice ¶ 0.62(14), at 700.45 (2d ed. 1982) (“[§ 1355] also confers jurisdiction of actions to recover penalties collectable by private parties under the laws of the United States”). However, the law in this circuit is governed by the decision in Fields v. Washington, 173 F.2d 701 (3d Cir. 1949). In Fields, the plaintiff tenant filed suit in federal court against his landlord under the Housing and Rent" }, { "docid": "18062600", "title": "", "text": "HUXMAN, Circuit Judge. These were companion cases instituted against G. E. Greider and Robert E. Bennett, under the Housing and Rent Act of 1947, as amended, 50 U.S.C.A. Appendix, ■§ 1881 et seq., and applicable rent regulations, for an injunction to restrain violations of the regulations and for restitution to certain tenants for excess rents charged and collected. The trial court found that overcharges had been made and entered a judgment directing appellants, defendants below, to make restitution of the overcharges, but refused to grant an injunction. On appeal, it is urged (1) that the court lacked jurisdiction, and (2) that the findings of fact and conclusions of law of the court are, in part, erroneous. Appellants take the position that to confer jurisdiction under the Housing and Rent Act of 1947, the amount involved must exceed the sum of $3,000. It is their position that the jurisdiction in Federal courts in an action to recover overcharges under the 1947 Act is materially different from such an action brought under the applicable provisions of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq. Section 205 (a) of the Act of 1942, 50 U.S.C.A. Appendix, § 925 (a), provided that: “Whenever in the judgment of the Administrator any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provisions of section 4 of this Act, he may make application to the appropriate court for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, and upon a showing by the Administrator that such person has engaged or is about to engage in any such acts or practices a permanent or temporary injunction, restraining order, or other order shall be granted without bond.” Section 205 (c) provides that: “The district courts shall have jurisdiction * * concurrently with State and Territorial courts, of all other proceedings under section 205 of this Act.” It is appellants’ contention that Section 205 (c) defines the jurisdiction of the District courts under the Emergency" }, { "docid": "23481316", "title": "", "text": "Dollars ($30.00) a month. The plaintiff paid Fifty One and 75/100 Dollars ($51.75) in September and October, but thereafter he h;is tendered the maximum legal rental to the defendant. Upon, the defendant’s failure to comply with the refund order of August 7, 1947, the plaintiff, on February 5, 1948, brought this action. The complaint asserts two causes of action. The first demands a refund of the excess amounts paid from February 1, 1947, up to- and including October of the same year plus a reasonable attorney’s fee and costs, or three times the amount by which the payments accepted by the defendant exceeded the maximum rent. The second cause of action claims a refund of the over-payments paid prior to February 1, 1947, or Five Hundred Seventy Dollars ($570). Without filing an answer, the defendant has moved to dismiss the complaint because it fails to state a ¡claim upon which relief may be granted. Section 205 of the Housing and Rent Act of 1947, which makes a person liable for accepting any payment of rent in excess of the legal maximum, provides; “Suit to recover such amount may be brought in any Federal, State, or Territorial court of competent jurisdiction within one year after the date of such violation.” Each time defendant accepted an amount in excess of Thirty Dollars ($30) a month, lie violated the Act thereby making himself liable in damages, independent of any refunding order, to the plaintiff. But such liability may be enforced only within a year of the violation. Consequently only those overpayments which were made in the year immediately preceding February 5, 1948, the date this suit was brought, may be recovered herein.. In citing Woods v. Stone, 333 U.S. 472, 68 S.Ct. 624, the plaintiff points out that the one-year statute of limitations begins to run when the time prescribed in a refund order, within which repayment is to be made, has elapsed. The cited case is not controlling here, for the housing accommodation there in question was not registered, whereas in -our case, the housing and rent regulations with respect to registration" }, { "docid": "6121115", "title": "", "text": "LEE, Circuit Judge. This is a suit brought by the Housing Expediter against the defendants for injunctive relief, restitution, and damages pursuant to Section 205 (a) and (e) of the Emergency Price Control Act, as amended, 50 U.S.C.A.Appendix, § 925 (a, e), for alleged violation of the Rent Regulation for Housing. The complaint charged that the defendants are the owners of housing accommodations known as Unit No. 2 of an apartment house at 607 W. Gray St., Houston, Texas, within the Houston Defense-Rental Area; and that from August 1, 1946, through December 9, 1946, they had violated the act and the regulations by demanding and receiving from one Charles E. Norton, Jr., a tenant, the sum of $163 in excess of the maximum legal rental for the housing unit in question. As relief, the plaintiff asked for judgment restraining defendants from further violations of the act, and ordering defendants to make restitution to the tenant of the $163 and to pay to the United States as damages $326, double the amount of the overcharge, or, in the alternative if restitution to the tenant was denied, to pay to the United States as damages $489, treble the amount of the overcharge. Defendants first denied making any overcharge, then pleaded that, if they had violated the act, the violation was not willful, nor was it the result of failure to take practical precautions to avoid violation. When the case came on to he heard, plaintiff, to show the ceiling price, placed upon the witness stand one John C. Harris, Jr., employed at the Area Rent Office as area rent attorney. He testified that he was in charge of the files of the Rent Area Office, where, in accordance with the housing and rent act, records were required to be kept. He produced from the files, and the plaintiff offered in evidence, a registration statement which described 607 W. Gray, Apartment No. 2, and showed the ceiling price to be $40 a month. On objection, the document was excluded by the court. Beyond this document, no evidence was offered except testimony to show" }, { "docid": "3706151", "title": "", "text": "GOODRICH, Circuit Judge. This is an appeal by a landlord from a summary judgment entered by the District Court in an action by the Housing Expediter for injunctive relief and statutory damages under Sections 205(a) and 205 (e) of the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, §§ 925 (a), 925(e). (D.C.E.D. Pa.1949, 84 F.Supp. 385). The complaint says that under the applicable rent regulations for the Philadelphia area the maximum legal rent for the landlord’s premises was the rent received for them on the freeze date, which was $50 per month. It is alleged that the defendant, between certain named dates, demanded and received a rental of $65 per month, the overcharges in the year preceding the filing of the complaint amounting to $135. Treble damages and injunctive relief are asked for. The landlord’s answer denies that the freeze date rental was only $50 per month; it is alleged that the lessees were also required to pay, as “additional rent,” certain taxes, fire insurance premiums, water rents and the cost of all repairs. As consideration for a new lease providing for a monthly rental of $65, the landlord says that he waived some $400 worth of repairs and obligations, the cost of which should have been borne by the lessees but which in fact were not. 1. The landlord’s first defense, therefore, is that he did not raise rent at all. He says that he did change the cash to be paid from $50 to $65, but that this really was not an increase in rent because the tenant was relieved of some obligations with respect to the leased premises which he, the tenant, had under the former lease. If what the landlord says here raises a disputed question of fact upon a relevant issue there cannot be summary judgment under Rule 56, Federal Rules of Civil Procedure, 28 U. S.C.A. But we do not think that a disputed question of fact of significance for this case is raised. The affidavit of the Regional Director, which is not disputed, says that the registration statement filed indicates" }, { "docid": "23022411", "title": "", "text": "call attention to the case of Fields v. Washington, 3 Cir., 173 F.2d 701, and make the point that a federal court in order to be competent within the meaning of the Housing and Rent Act, supra, must find its jurisdiction under some provision of law existing at the 'time of the enactment of § 205 as part of the Act; they claim that the Act contains no general grant of jurisdiction, and argue that § 205 means any federal court authorized by a pre-existing jurisdictional grant to hear and determine a particular case, requiring as one of its conditions an amount in controversy in excess of $3,000. It does not appear that the court in Fields v. Washington, supra, considered § 205(e) of the Emergency Price Control Act, or that it was called to its attention. Congress has the power to authorize a suit arising under a federal law to be brought in any inferior court, Robertson v. Railroad Labor Board, 268 U.S. 619, 622, 45 S.Ct. 621, 69 L.Ed. 1119. The question is whether it did so by passage of the Act here involved. The sole object-of construction is to determine tire legislative intent. In considering the problem, it is well to bear in mind that the Housing and Rent Act of 1947, as amended, is emergency legislation. This' appears by § 201(b) of the Act where it is stated: “ * * * the Congress recognizes that an emergency exists and that, for the prevention of inflation and for the achievement of a reasonable stability in the general level of rents during the transition period, as well as the attainment of other salutary objectives of the above-named Act, it is necessary for a limited time to impose certain restrictions upon rents charged for rental housing accommodations in defense-rental areas.” Thus Congress created the treble damage remedy as a means of statutory enforcement. The Act creating this remedy is highly remedial, and the plain purpose of § 205 authorizing recovery of three times the amount of an overcharge was to enlist the help of tenants by soliciting their" }, { "docid": "22234998", "title": "", "text": "(2) three times the amount by which the payment or payments demanded, accepted, or received exceed the maximum rent which could lawfully be demanded, accepted, or received, whichever in either case may be the greater amount: Provided, That the amount of such liquidated damages shall be the amount of the overcharge or overcharges if the defendant proves that the violation was neither willful nor the ‘result of failure to take practicable precautions against the occurrence of the violation. Suit to recover such amount may be brought in any Federal, State, or Territorial court of competent jurisdiction within one year after the date of such violation.” It will be seen that a suit to recover treble damages under the section “may be brought in any Federal, State or Territorial Court of competent jurisdiction.” The Housing and Rent Act of 1947 contains no general grant of jurisdiction to those courts similar to that contained in. Section 205(c) of the Emergency Price Control Act, however. It follows that the competency of a Federal district court to entertain such a suit by a tenant must be based upon some other statutory grant of jurisdiction over the subject matter and the parties. Here the defendant is a resident of New Jersey so that the court undoubtedly has venue jurisdiction over the parties under Section 1391 of Title 28, U.S. C.A. The question remains whether it has jurisdiction of the subject matter of the action. Turning to chapter 85 — District Courts; Jurisdiction, of Title 28 United States Code, Annotated, we find only two grants of jurisdiction which need be considered. The first is Section 1331 which confers upon the district courts original jurisdiction of civil actions wherein the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs, and arises under the laws of the United States. The second is Section 1355 which gives the district courts original jurisdiction, exclusive of the courts of the States, of any action or proceeding for the recovery of any penalty incurred under any Act of Congress. It is obvious that although the present" }, { "docid": "18062602", "title": "", "text": "Price Control Act of 1942, and point to the fact that the Act of 1947, while it contains Section 206 (b), 50 U.S.C.A.Appendix § 1896 (b), which is substantially the same as Section 205 (a) of the Act of 1942, omits entirely Section 205 (c) of the Act of 1942 and contains no comparable provisions granting a general jurisdiction to Federal courts similar to that contained in Section 205 (c) of the Emergency Price Control Act of 1942. It is their position that we must look to Title 28 U.S.C.A. § 1331, to determine what is a competent jurisdiction under Section 206 (b), and that since it provides that the amount in controversy must be more than $3,000, and the amount involved herein is greatly less than that sum, the court was without jurisdiction. Appellants rely for support of their position upon the late case of Fields v. Washington, 3 Cir., 173 F.2d 701, wherein it was held that a Federal court lacked jurisdiction of an action for treble damages for excess rent charges brought under the 1947 Act unless the amount involved exceeded $3,000. In a later case, Adler v. Northern Hotel Company, 175 F.2d 619, the Seventh Circuit reached a conti'ary conclusion on facts indistinguishable from those in the Fields case, supra. We do not deem it necessary to consider these two cases and choose between them because the facts therein distinguish them from this case. In both of these cases, the action was brought by individuals for treble damages, while here the action is brought by the Expediter. It is not necessary to determine whether the jurisdictional question in such a case is different from that in a case brought by the Expediter. It is worthy of note that Section 205 (a) of the Act of 1942 did not designate the courts in which an action might be brought. It merely provided that the Administrator might make application to an appropriate court for an injunction, etc. It was, there fore, necessary in other subsections of the Act to define what were appropriate courts for such actions. This" }, { "docid": "23022417", "title": "", "text": "would keep the amount involved under the $3,000 figure in all but the most exceptional case. The legislative history of the 1947 act is barren of any suggestion Congress intended. for the first time to limit the jurisdiction of the federal courts in such tenant suits. The elimination of Sec. 205(c) in the 1947 act, while retaining the language, “suit to recover such amount may be brought in any Federal, State, or Territorial court of competent jurisdiction,” does not show an intention to close the doors of the federal courts to practically all tenant damage suits. To adopt defendant’s construction would mean that although Congress gave express permission to bring such tenant actions in the federal courts, no such right exists as a practical matter. The passage of the Housing and Rent Act of 1947 was a matter of great public concern. Much publicity was given in the press to the subject of continuing rent control. Members of Congress were keenly aware of this public interest. Yet neither in committee reports nor in speeches by members of Congress was the slightest intimation given that, to all intents and purposes, actions by overcharged tenants were henceforth to be barred from the federal courts. But defendants insist that the grant of general jurisdiction to the federal courts was provided in Sec. 205(c) of the 1942 Act, and that when that section in part was eliminated in the 1947 Act the law contained no such grant of jurisdiction. This argument is not sound. Sec. 205(c) was contained in the original bill as it passed the House of Representatives in 1941, at which time the bill contained only injunc-tive and criminal remedies. As all federal district courts already had jurisdiction, under the Judicial Code, to enforce such remedies, Sec. 205(c) could not have been inserted for tire purpose merely of granting federal jurisdiction. Rather it was intended to distinguish the jurisdiction of criminal cases, which was exclusively federal, from the jurisdiction of civil cases, which was concurrently State and federal. When the criminal sanctions were eliminated in the 1947 Act, it might have well" }, { "docid": "22234997", "title": "", "text": "MARIS, Circuit Judge. The plaintiff, a tenant, brought suit in the United States District Court for the District of New Jersey against the defendant, his landlord, under Section 205 of the Housing and Rent Act of 1947 for treble damages for alleged overcharges of rent. The total amount claimed was $672, plus a reasonable attorney’s fee and costs. The district court dismissed the complaint for want of jurisdiction and the plaintiff has appealed. We agree that the district court was without jurisdiction because the matter in controversy did not exceed the stun of $3,000, exclusive of interest and costs, and that the complaint was, therefore, properly dismissed. The pertinent provisions of Section 205 are as follows: “Sec. 205. Any person who demands, accepts, or receives any payment of rent in excess of the maximum rent prescribed under section 204 shall be liable to the person from whom he demands, accepts, or receives such payment, for reasonable attorney’s fees and costs as determined by the court, plus liquidated damages in the amount of (1) $50, or (2) three times the amount by which the payment or payments demanded, accepted, or received exceed the maximum rent which could lawfully be demanded, accepted, or received, whichever in either case may be the greater amount: Provided, That the amount of such liquidated damages shall be the amount of the overcharge or overcharges if the defendant proves that the violation was neither willful nor the ‘result of failure to take practicable precautions against the occurrence of the violation. Suit to recover such amount may be brought in any Federal, State, or Territorial court of competent jurisdiction within one year after the date of such violation.” It will be seen that a suit to recover treble damages under the section “may be brought in any Federal, State or Territorial Court of competent jurisdiction.” The Housing and Rent Act of 1947 contains no general grant of jurisdiction to those courts similar to that contained in. Section 205(c) of the Emergency Price Control Act, however. It follows that the competency of a Federal district court to entertain such" }, { "docid": "23022409", "title": "", "text": "KERNER, Circuit Judge. This is an appeal by defendants from a judgment in favor of plaintiffs in an action under § 205 of the Housing and Rent Act of 1947, 50 U. S .C.A.Appendix, § 1895, for treble damages for alleged overcharges of rent. In this court, defendants have made a motion that the cause be remanded to the District Court with instructions to vacate the judgment and dismiss the complaint on the ground that the District Court was without jurisdiction because the claim of each plaintiff was less than $3,000. The motion involves interpretation of the Act in its entirety, and in addition, a consideration of the provisions of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq. Section 205' of the Housing and Rent Act of'1947, as amended, provides that a tenant may bring an .action for alleged overcharges and recover a- maximum of three times the amount of the overcharges (or a minimum amount equal to the actual overcharges), or $50, whichever may be the greater, ■and that “Suit to recover such amount may be brought in any Federal, State, or Territorial court of competent jurisdiction within one year after the date of such violation.” The identical words “competent jurisdiction” were .used in the Emergency Price ■Control Act, supra, and ’that phrase in that •statute has not been construed as a restriction upon federal jurisdiction. On the contrary, federal courts have tried damage ■Claims without regard to the amount involved. This the defendants concede, but they say that' federal courts are • competent to try such actions, not by § 205(e) of that .Act which provides that such action may be brought “in any court of competent jurisdiction” but by virtue of § 205(c) which ■provides that “The district courts shall have jurisdiction * * * concurrently with 'State and Territorial courts, of all other proceedings *' * *.” But § . 205(c) has to be read with § 205(e), and when so read, as to jurisdiction, they produce language in effect identical with •§ 205 of the Housing and Rent Act. Defendants" }, { "docid": "11152944", "title": "", "text": "time upon the question may not unbecomingly be indicated. The text of the statutory section under consideration with appropriate indication of stricken language and with underlining emphasis upon the matter added by amendment, follows: \"Recovery of Damages 4y-Texants”- Sec. 205. Any person who demands, accepts, or receives any payment of rent in excess of the maximum rent prescribed under section 204 shall be liable to the person from whom he demands, accepts, or receives such payment (or shall be liable to the United, States as hereinafter provided) for reasonable attorney’s fees and costs as determined by the court, plus liquidated damages in the amount of (1) $50, or (2) three times the amount by which the payment or payments demanded, accepted, or received exceed the maximum rent which could lawfully be demanded, accepted, or received, whichever in either case may be the greater amount: Provided, That the amount of such liquidated damages shall be the amount of the overcharge or overcharges if the defendant proves that the violation was neither willful nor the result of failure to take practicable precautions against the occurrence of the violation. Suit to recover such amount may be brought in any Federal, State, or Territorial court of competent jurisdiction within one year after the date of such violation: ‘Provided, That if the person from •whom such payment is demanded, accepted, or received either fails to institute an action under this section within thirty days from the date of the occurrence of the violation or is not entitled for any reason to bring the action, the United States may institute such action within such one-year period. If such acticm is instituted, the person from whom such payment is demanded, accepted, or received shall thereafter be barred from bringing am action for the same violation or violations.’ For the purpose of determining the amount of liquidated damages to be awarded to the plaintiff in an action brought under this section, all violations alleged in such action which were committed by the defendant with respect to the plaintiff prior to the bringing of action shall be deemed to" }, { "docid": "5542539", "title": "", "text": "PHILLIPS, Chief Judge. The United States brought this action against Tenorio for statutory damages under § 205 of the Housing and Rent Act of 1947, as amended, 50 U.S.C.A.Appendix, § 1895, and restitution of rent overcharges under the provisions of § 206(b) of the Act, 50 U.S.C.A.Appendix § 1896(b). From a judgment for Tenorio, the United States has appealed. The facts are not in dispute. Tenorio leased the housing accommodations involved for the period from January 1, 1949, to January 1, 1950, to his daughter, Matilda Lovato, and charged and collected a rental of $40 per month. The maximum legal rent for such period was $15 per month. The rental was paid by the Denver. Bureau of Public Welfare on behalf of Lovato. Under the facts, the United States was entitled to judgment for at least the amount of the overcharges collected and received within one year preceding the filing of the suit, which was for $50. Relief by way of restitution is equitable in nature and should be granted or withheld in accordance with traditional equity principles and practices, as conditioned by the necessities of the public interest, which the Act seeks to protect. In awarding restitution the court may take into consideration as one of the circumstances the amount of damage claimed and awarded the United States. The judgment is reversed and the cause is remanded for further proceedings in accordance with the views herein expressed. . Hereinafter called the Act. . United States v. Carter, 10 Cir., 197 F.2d 903. . United States v. Carter, supra. . United States v. Carter, supra." }, { "docid": "22914095", "title": "", "text": "Mr. Justice Clark delivered the opinion of the Court. The United States brings this action under the Housing and Rent Act of 1947, as amended, to obtain damages for violations of the Act and restitution of overceiling rentals collected. The question is whether under § 206 (b) of the Act a landlord may be ordered to make restitution of overceiling rentals where a prohibitory injunction is not required because the defense-rental area was decontrolled after the violations but before the Government brought suit. Respondents are landlords of housing accommodations in Dallas, Texas. Between October 1, 1947, and May 31, 1949, they demanded and received rents in excess of those allowed by the applicable maximum rent regulation issued under the Act. This action was begun in Federal District Court on June 29, 1949, pursuant to §§ 205 and 206 (b) of the Act. The complaint by its terms sought a prohibitory injunction, restitution of all overcharges, and statutory damages. Respondents moved to dismiss on the ground that on June 23, 1949, six days prior to filing of the complaint, the Housing Expediter, pursuant to action taken by the City of Dallas under § 204 (j) (3) of the Act, terminated rent control in that city; that this act of the Expediter terminated as to Dallas all provisions of Title II of the Act including the remedial provisions under which this suit is brought; and that no saving clause was applicable. The District Court denied the motion. Respondents did not demand a jury. A trial to the court concluded in a judgment for the Government, allowing statutory damages of $50 for a wilful violation and ordering restitution to the tenant of all overcharges received. On appeal by respondents the Court of Appeals for the Fifth Circuit reversed. 182 F. 2d 332 (1950). It held that the Government has a right of action solely for statutory damages under § 205 and remanded for new trial on this issue. A dismissal was directed insofar as the complaint seeks injunctive relief and restitution. The Government, asserting conflict with Porter v. Warner Holding Co., 328 U." }, { "docid": "1426586", "title": "", "text": "claim made before the court. . . . The state replies that the double-wage damages recoverable under 46 U.S.C. § 596 are not a “penalty” within the meaning of section 1355 and that section 1355 only applies to suits brought by the government. The authorities are divided on the question of whether section 1355 reaches private actions for damages. Compare 13 Wright & Miller, Federal Practice and Procedure § 3578, at 514 (1975) (“more usual modern view is that [§ 1355] extends only to suits by a public officer to recover a sum of money that will be paid into the public treasury”) with 1 Moore’s Federal Practice ¶ 0.62(14), at 700.45 (2d ed. 1982) (“[§ 1355] also confers jurisdiction of actions to recover penalties collectable by private parties under the laws of the United States”). However, the law in this circuit is governed by the decision in Fields v. Washington, 173 F.2d 701 (3d Cir. 1949). In Fields, the plaintiff tenant filed suit in federal court against his landlord under the Housing and Rent Control Act of 1947 for treble damages for alleged overcharges of rent. Because that Act had no provision expressly granting federal jurisdiction and the amount in controversy did not meet the minimum then required for jurisdiction under 28 U.S.C. § 1331, plaintiff asserted jurisdiction under the penalty provision of section 1355. This court, in an opinion by Judge Maris, affirmed the district court’s dismissal for want of jurisdiction, stating: [§ 1355] relates only to suits for a penalty. Here, however, the suit is not by a public officer to recover a sum of money which will be paid into the public treasury. If so it would doubtless be a suit for a penalty and, therefore, cognizable under that section.... On the contrary, it is an action for damages brought to compensate the individual who has been injured. It is, therefore, not in any true sense of the term an action for a penalty. Id. at 703. Under the construction given to “penalty” in Fields, private suits, such as that before us, to recover statutory damages," }, { "docid": "23526830", "title": "", "text": "various reasons, including a protracted series of efforts on the part of appellant, acting as his own attorney, to prevent the action from being maintained against him. Before the case finally came to trial in 1951, the Emergency Price Control Act had long been expired and the field of rent control had been made subject to the Housing and Rent Acts of 1947, 1948 and 1949, respectively, 61 Stat. 193, 62 Stat. 93, 63 Stat. 18, as amended and extended, 64 Stat. 253, 50 U.S.C.A.Appendix, § 1881 et seq. During the pendency of the suit, changes and substitutions in the official plaintiff had resultingly occurred, and other amendments to pleadings had also been made. There further had been a formal order entered in the proceeding denying appellant the right tó a jury trial on any issue. When the case finally came to trial, the court treated it as constituting entirely a matter of equitable jurisdiction, including the determination of whether violations had occurred and in what amount, and whether such violations had been wilful or the result of failure to take practicable precautions against their occurrence, as a basis for damages and the amount thereof, under section 205(e) of the Emergency Price Control Act, as amended, 50 U.S.C.A.Appendix, § 925(e), in relation to the violations originally alleged, and under section 205 of the Housing and Rent Act of 1947, as amended, 50 U.S.C.A.Appendix, § 1895(a), in relation to some claimed subsequent violations included in the second amended complaint. The second amended complaint prayed for relief in the following form: (1) For a judgment in favor of the United States as damages in three times the amount of the alleged overcharges; (2) for an order of restitution in favor of the tenants, with a deduction of the amount thereof “from the treble damages adjudged to the United States;” and (3) for an injunction against further violation of the Housing and Rent Act then in effect and any superseding Act. The court’s decree was as follows: “(a) Ordered, Adjudged and Decreed that” appellant be enjoined from 'charging and collecting rent in excess" }, { "docid": "23022410", "title": "", "text": "“Suit to recover such amount may be brought in any Federal, State, or Territorial court of competent jurisdiction within one year after the date of such violation.” The identical words “competent jurisdiction” were .used in the Emergency Price ■Control Act, supra, and ’that phrase in that •statute has not been construed as a restriction upon federal jurisdiction. On the contrary, federal courts have tried damage ■Claims without regard to the amount involved. This the defendants concede, but they say that' federal courts are • competent to try such actions, not by § 205(e) of that .Act which provides that such action may be brought “in any court of competent jurisdiction” but by virtue of § 205(c) which ■provides that “The district courts shall have jurisdiction * * * concurrently with 'State and Territorial courts, of all other proceedings *' * *.” But § . 205(c) has to be read with § 205(e), and when so read, as to jurisdiction, they produce language in effect identical with •§ 205 of the Housing and Rent Act. Defendants call attention to the case of Fields v. Washington, 3 Cir., 173 F.2d 701, and make the point that a federal court in order to be competent within the meaning of the Housing and Rent Act, supra, must find its jurisdiction under some provision of law existing at the 'time of the enactment of § 205 as part of the Act; they claim that the Act contains no general grant of jurisdiction, and argue that § 205 means any federal court authorized by a pre-existing jurisdictional grant to hear and determine a particular case, requiring as one of its conditions an amount in controversy in excess of $3,000. It does not appear that the court in Fields v. Washington, supra, considered § 205(e) of the Emergency Price Control Act, or that it was called to its attention. Congress has the power to authorize a suit arising under a federal law to be brought in any inferior court, Robertson v. Railroad Labor Board, 268 U.S. 619, 622, 45 S.Ct. 621, 69 L.Ed. 1119. The question is" }, { "docid": "8711779", "title": "", "text": "contention that he is entitled to recover treble damages on account of defendant’s violation of the regulation is unsound. Many instances in the law could be cited where a party has sought the recovery of damages against a violator of a statutory or regulatory provision and whose claim has been denied for failure to prove damages as a result of such violation. A situation which readily comes to mind is the antitrust legislation wherein a civil action is provided for treble damages by a person who has been injured in his business or property. Title 15 U.S.C.A. § 15. However, violation of the statute by a defendant is of no benefit to an injured person in the absence of proof of actual damages. See Turner Glass Corporation v. Hartford-Empire Co., et al., 7 Cir., 1949, 173 F.2d 49, and the cases therein cited. While defendant’s violation of the regulation does not give the plaintiff a cause of action, such violation does serve to bring the defendant within the terms of Section 205. That plaintiff is given a cause of action under said section is without doubt. The amount of recovery to which he is entitled is the important question. It appears plain that the provision contemplates the awarding of damages to an aggrieved tenant. The title or subject matter of the provision is “Recovery of Damages by Tenants.” The cause is predicated upon the receipt of rent “in excess of the maximum rent,” and the liability of the landlord is “for reasonable attorney’s fees and costs * * *, plus liquidated damages in the amount of (1) $50, or (2) three times the amount by which the payment * * * exceed[s] the maximum rent which could lawfully be * * * received, whichever in either case may be the greater amount * * *» Thus, in any event the tenant is entitled to recover as liquidated damage the amount of $50, but if the trebled amount of the excess payment is greater than the sum of $50, he is entitled to recover such trebled amount and, in our view," }, { "docid": "8711780", "title": "", "text": "given a cause of action under said section is without doubt. The amount of recovery to which he is entitled is the important question. It appears plain that the provision contemplates the awarding of damages to an aggrieved tenant. The title or subject matter of the provision is “Recovery of Damages by Tenants.” The cause is predicated upon the receipt of rent “in excess of the maximum rent,” and the liability of the landlord is “for reasonable attorney’s fees and costs * * *, plus liquidated damages in the amount of (1) $50, or (2) three times the amount by which the payment * * * exceed[s] the maximum rent which could lawfully be * * * received, whichever in either case may be the greater amount * * *» Thus, in any event the tenant is entitled to recover as liquidated damage the amount of $50, but if the trebled amount of the excess payment is greater than the sum of $50, he is entitled to recover such trebled amount and, in our view, the court has no discretion in that respect in the absence of a defense within the proviso contained in the section. If there be any doubt that the court is without discretion in the absence of such a defense, it is removed by the proviso itself, which states, “That the amount of such liquidated damages shall be the amount of the overcharge or overcharges if the defendant proves that the violation was neither wilful nor the result of failure to take practicable precautions against the occurrence of the violation” (sometimes referred to as the good faith defense). In other words, in the absence of such defense, the court is required to enter a judgment for treble the amount of the excess payment, and when the court finds that such defense has been made, it is limited to the amount of the overcharge. In either event, no discretion is lodged in the court. In this connection, it is pertinent to note that a similar section (Section 205) of the Emergency Price Control Act of 1942 as" }, { "docid": "23526829", "title": "", "text": "JOHNSEN, Circuit Judge. This suit was originally instituted against appellant in March 1947 by the Administrator of Temporary Controls, under the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, § 901 et seq., for alleged violation of the Rent Regulation for Housing, 8 F.R. 7322, in having collected rents in excess of the established maximum, on some housing accommodations located in the Kansas City (Missouri) Defense Rental Area. The 'complaint sought an injunction and a restitution order under section 205(a) of the Act, 50 U.S.C.A.Appendix, § 925(a), and a judgment for damages in favor of the United States, in twice the amount of the overcharges, under section 205(e) of the Act, 50 U.S.C.A.Appendix, § 925(e). Appellant denied that there had been any overcharges and, both in the body of his answer as well as by separate notation at the bottom thereof, he made a general demand for a jury trial, within the requirements of Rule 38(b), Federal Rules of Civil Procedure, 28 U.S.C.A. Disposition of the case on its merits was delayed for various reasons, including a protracted series of efforts on the part of appellant, acting as his own attorney, to prevent the action from being maintained against him. Before the case finally came to trial in 1951, the Emergency Price Control Act had long been expired and the field of rent control had been made subject to the Housing and Rent Acts of 1947, 1948 and 1949, respectively, 61 Stat. 193, 62 Stat. 93, 63 Stat. 18, as amended and extended, 64 Stat. 253, 50 U.S.C.A.Appendix, § 1881 et seq. During the pendency of the suit, changes and substitutions in the official plaintiff had resultingly occurred, and other amendments to pleadings had also been made. There further had been a formal order entered in the proceeding denying appellant the right tó a jury trial on any issue. When the case finally came to trial, the court treated it as constituting entirely a matter of equitable jurisdiction, including the determination of whether violations had occurred and in what amount, and whether such violations had been wilful or" } ]

[ { "docid": "22146743", "title": "", "text": "There is a strong presumption against finding binding obligation in agreements which include open terms, call for future approvals and expressly anticipate future preparation and execution of contract documents. Nonetheless, if that is what the parties intended, courts should not frustrate their achieving that objective or disappoint legitimately bargained contract expectations. Giving legal recognition to preliminary binding commitments serves a valuable function in the marketplace, particularly for relatively standardized transactions like, loans. It permits borrowers and lenders to make plans in reliance upon their preliminary agreements and present market conditions. Without such legal recognition, parties would be obliged to expend enormous sums negotiating every detail of final contract documentation before knowing whether they have an agreement, and if so, on what terms. At the same time, a party that does not wish to be bound at the time of the preliminary exchange of letters can very easily protect itself by not accepting language that indicates a “firm commitment” or “binding agreement.” Upon careful consideration of the circumstances and the express terms of this commitment letter, I conclude that it represented a binding preliminary commitment and obligated both sides to seek to conclude a final loan agreement upon the agreed terms by negotiating in good faith to resolve such additional terms as are customary in such agreements. I reject Tribune’s contention that its reservation of the right of approval to its Board of Directors left it free to abandon the transaction. Expression of Intent The Court of Appeals’ first and most important factor looks to the language of the preliminary agreement for indication whether the parties considered it binding or whether they intended not to be bound until the conclusion of final formalities. This factor strongly supports Teachers. The exchange of letters constituting the commitment was replete with the terminology of binding contract, for example: If the foregoing properly sets forth your understanding of this transaction, please evidence acceptance of the conditions of this letter by having it executed below by a duly authorized officer ... and by returning one executed counterpart____ Upon receipt by [Teachers] of an accepted counterpart of" } ]

[ { "docid": "16222956", "title": "", "text": "670 F.Supp. at 498; Adjustrite, 145 F.3d at 548. The path between this Scylla and Charybdis is, of course, to enforce a preliminary agreement only to the extent that the parties intend it to be binding. In this regard, “giving legal recognition to [Type II agreements] serves a valuable function in the marketplace ... permitting parties] to make plans in reliance upon their preliminary agreements and present market conditions ... [without] expending] enormous sums negotiating every detail of final contract documentation before knowing whether they have an agreement, and if so, on what terms.” Tribune, 670 F.Supp. at 499. In our view, this is exactly what these parties did when they signed the MOU. This flexibility comes with limitations, of course. While a Type I preliminary agreement is fully binding as to the final contractual goal, a Type II agreement “does not commit the parties to their ultimate contractual objective but rather to the obligation to negotiate the open issues in good faith in an attempt to reach the ... objective within the agreed framework.” Adjustrite, 145 F.3d at 548 (internal quotation marks omitted). “This obligation does not guarantee that the final contract will be concluded if both parties comport with their obligation, as good faith differences in the negotiation of the open issues may prevent a reaching of final contract.” Tribune, 670 F.Supp. at 498. Whether the differences that have terminated the parties’ working relationship in this case reflect good faith is a question for the District Court on remand. The considerations relevant to whether a preliminary agreement is a binding Type II agreement are: (1) whether the intent to be bound is revealed by the language of the agreement; (2) the context of the negotiations; (3) the existence of open terms; (4) partial performance; and (5) the necessity of putting the agreement in final form, as indicated by the customary form of such transactions. See Arcadian, 884 F.2d at 72; Williston on CONTRACTS, § 4:8. While some of these factors are the same as those applied to determine whether a document is a Type I preliminary agreement, they" }, { "docid": "22253853", "title": "", "text": "agreement will not result in binding contract); R.G. Group, 751 F.2d at 75 (considerable weight given to explicit statement that party will not be bound in absence of written agreement). In applying the Tribune test to this case, we need look no further than the first factor. The language of the November memorandum — two references to the possibility that negotiations might fail and the reference to a binding sales agreement to be completed at some future date — shows that Arcadian did not intend to be bound. Contrast the language of the November memorandum with the letters in Tribune and Butler. In Tribune, a letter described itself as a “binding agreement,” 670 F.Supp. at 494, and in Butler, the parties agreed that their agreement was binding, 626 F.Supp. at 1230. This fact was critical to Judge Leval’s reasoning in Tribune: “[A] party that does not wish to be bound, he said, “can very easily protect itself by not accepting language that indicates a ‘firm commitment’ or ‘binding agreement.’ ” 670 F.Supp. at 499. Conversely, a party that wishes to be bound can very easily protect itself by refusing to accept language that shows an intent not to be bound. See Reprosystem, 727 F.2d at 262 (reference to future formal agreement shown intent not to be bound); Chrysler Capital Corp. v. Southeast Hotel Properties Ltd. Partnership, 697 F.Supp. 794, 800-01 (S.D.N.Y.1988) (letter which stated that it would not become a binding agreement until certain conditions were met showed intent not to be bound unconditionally). In order to prevail on the breach of contract claims, Arcadian needed to show only that API “should have known that [Arcadian] did not intend to be bound before the [final] contract was signed.” Reprosystem, 727 F.2d at 261; see also V’Soske, 404 F.2d at 499 (same). The language of the November memorandum reveals just that: API should not have believed that Arcadian intended to be bound. As Judge Leval noted in Tribune, “There is a strong presumption against finding binding obligation in agreements which include open terms, call for future approvals and expressly anticipate future" }, { "docid": "16940017", "title": "", "text": "L.Ed.2d 454 (1969). “A binding preliminary agreement binds both sides to their ultimate contractual objective in recognition that, despite the anticipation of further formalities, a contract has been reached.” Adjustrite Systems, Inc. v. GAB Bus. Services, Inc., 145 F.3d 543, 548 (2d Cir.1998) (internal quotation marks omitted). To determine whether a Type I binding preliminary agreement exists, courts in this Circuit consider these factors: (a) whether there is an express reservation of the right not to be bound in the absence of a writing; (b) whether there has been partial performance of the contract; (c) whether all of the alleged contract terms have been agreed upon; and (d) whether the agreement is customarily reduced to writing. See e.g., Brown v. Cara, 420 F.3d 148, 154 (2d Cir.2005); R.G. Group, 751 F.2d at 75; Tribune, 670 F.Supp. at 498. “No single factor is decisive but each provides significant guidance.” R.G. Group, 751 F.2d at 75. a) Whether there is an Express Reservation of the Right not to be Bound in the Absence of a Writing Whether the parties reserved the right not to be bound absent a writing “is the most important” factor in determining whether a Type I binding preliminary agreement exists. Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 72 (2d Cir.1989). In order to make that determination, courts in this Circuit look to “what the parties said (and/or did),” Hostcentric Techs., Inc. v. Republic Thunderbolt, LLC, 04-1621, 2005 WL 1377853, at *6 (S.D.N.Y.2005) and at “the language of the preliminary agreement for an indication whether the parties considered it binding or whether they intended not to be bound until the conclusion of final formalities.’ ” Tribune, 670 F.Supp. at 499. The court will look at all the facts and circumstances during the entire course of the parties’ dealings. Winston, 777 F.2d at 81-82. While Evans and Costiniano reached an oral agreement on price, amount and type of Claims, it is undisputed that Bear Stearns and Hitachi wanted their final agreement formalized in writing and made the agreement subject to the negotiation of additional terms. Following the June" }, { "docid": "16467804", "title": "", "text": "preliminary or informal agreement can be binding even though the parties plan to memorialize their contract in a formal document. See R.G. Group, 751 F.2d at 74; Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 72 (2d Cir.1989). The Court of Appeals has cautioned, however, that courts should not frustrate a party’s “forthright, reasonable signals” of his or her intent. R.G. Group, 751 F.2d at 75. “If either party communicates an intent not to be bound until [achieving] a fully executed document, no amount of negotiation or oral agreement to specific terms will result in the formation of a binding contract.” Winston, 777 F.2d at 80 (citing R.G. Group, 751 F.2d at 74). In determining whether parties intend a preliminary agreement to be binding, courts look primarily to its language. Arcadian, 884 F.2d at 72 (citing Teachers Ins. and Annuity Ass’n v. Tribune Co., 670 F.Supp. 491, 499 (S.D.N.Y.1987)); see also R.G. Group, 751 F.2d at 75 (considerable weight given to explicit statement that party would not be bound in absence of written agreement). Courts also consider whether open terms exist, whether there has been partial performance, and whether parties engaging in similar transactions customarily put such agreements in final form. Arcadian, 884 F.2d at 72. In Arcadian, the Second Circuit found the language dispositive in holding that a preliminary agreement which anticipates execution of a final contract, and which lacks an express statement that it is to be a binding contract, is unenforceable even as a contract to negotiate. Id. at 72-73. The plaintiff in Arcadian sought to enforce a preliminary memorandum signed by the parties that outlined most of the terms of the sale of the defendant’s phosphate fertilizer business to the plaintiff. The language of the memorandum explicitly referenced the possibility that the negotiations might fail and that a binding sales agreement would be completed at some future date. Id. Based on such language, the Court held that, as a matter of law, the parties did not intend for the memorandum to be binding. Id. As in Arcadian, the Court need look no further than the" }, { "docid": "5300905", "title": "", "text": "parties can fulfill their obligations under this second type of binding preliminary agreement, and yet not agree on the ultimate written contract, provided good faith differences in the negotiation of the open issues prevent the parties from reaching a final contract. Such an “agreement to agree,” however, does prevent one party from arbitrarily abandoning the transaction or insisting on conditions that to do not conform to what was spelled out in the preliminary agreement. Teachers Ins., 670 F.Supp. at 498. In effect, an agreement to agree buys a party an assurance that the transaction will falter only over a genuine disagreement, thus allowing a party strapped for time or money to go ahead with arrangements with a sufficient degree of confidence in the outcome: Giving legal recognition to preliminary binding commitments serves a valuable function in the marketplace.... without such legal recognition, parties would be obliged to expend enormous sums negotiating every detail of final contract documentation before knowing whether they have an agreement, and if so, on what terms. At the same time, a party that does not wish to be bound at the time of the preliminary exchange of letters can very easily protect itself by not accepting language that indicates a ‘firm commitment’ or ‘binding agreement.’ Teachers Ins., 670 F.Supp. at 499. Bergner argues that during the meeting in Geneva on June 20, 1992, that Martinez and Maus entered into such a preliminary, oral agreement to negotiate and execute a written employment agreement. However, even an “agreement to agree” such as this one must meet the requirements necessary for formation of a binding contract: In any given case it is the intent of the parties that will determine the time of contract formation.... We have articulated several factors that help determine whether the parties intended to be bound in the absence of a document executed by both sides. The court is to consider (1) whether there has been an express reservation of the right not to be bound in the absence of a writing; (2) whether there has been partial performance of the contract; (3) whether all" }, { "docid": "20085673", "title": "", "text": "considering the legal effect of a preliminary agreement between contracting parties, courts in this Circuit have declared that “ ‘[m]ore is needed than agreement on each detail [to create a binding obligation. There must be] overall agreement ... to enter into the binding contract.’ ” Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 72 (2d Cir.1989) (quoting Teachers Ins. & Annuity Ass’n v. Tribune Co., 670 F.Supp. 491, 497 (S.D.N.Y.1987)). Among the factors a court will consider are “(1) the language of the agreement; (2) the context of the negotiations; (3) the existence of open terms; (4) partial performance; and (5) the necessity of putting the agreement in final form, as indicated by the customary form of such transactions. The first factor, the language of the agreement, is the most important.” Id. (citations omitted); see also Winston v. Mediafare Entertainment Corp., 777 F.2d 78, 80 (2d Cir.1985). “There is a strong presumption against finding binding obligation in agreements which include open terms, call for future approvals and expressly anticipate future preparation and execution of contract documents.” Teachers Ins., supra, 670 F.Supp. at 499. Continuing negotiations between the parties subsequent to a preliminary agreement may also indicate the absence of intent to be bound. See Bouton, supra, 902 F.2d at 1076-77, 1080; Winston, supra, 777 F.2d at 82-83. The agreement at issue here, the telex of April 23, contains no terms describing it as a binding agreement or expressing an intention by the parties to be bound as of that date, although it also lacks any express reservation of the right not to be bound. It is signed by neither party. It calls explicitly both for future approval by IMR’s board of directors and for the preparation and execution of a formal memorandum of agreement. There is no evidence of partial performance until after the signing of the memorandum of agreement. While the lifting of board approval occurred on May 15, certain terms remained open to negotiation, and the final draft of the Agreement was not completed until May 25, the day of its signing. The Court concludes from the" }, { "docid": "4494391", "title": "", "text": "in Arcadian was termed an “agreement” by the parties; the defendant obtained lenders’ consents after informing them of the “agreed upon” and “signed agreement”;. the defendant introduced the principals of the plaintiff to a supplier as the “new owners” of the phosphate facility; and the defendant executed an escrow agreement for the deposit monies with the proviso that it would be nonrefundable except “because of force majeure or [defendant’s] default”. In addition, the memorandum agreement stated that the parties agreed to “cooperate fully and work judiciously in order to expedite the closing date and consummate the sale of the business.” Id. In comparison, the facts that Ogden alleges to demonstrate an intent to be bound by the writings are far less significant. The use of the term commitment cannot be equated to the Tribune-type clause describing the letter in that case to' be a “binding agreement.” Even though the PPM here asked for a “firm” proposal and TriCon used forms of the verb to commit on four occasions in the June 10 response, the context of the use of these terms parallels the facts in Arcadian where the memorandum was even labeled as an “agreement” rather than in Tribune. In Tribune, the parties described the letter as a binding agreement and in Butler the parties agreed that their agreement was binding. Arcadian, 884 F.2d at 72. This acknowledgement of the binding nature of the writings present in Butler and Tribune is what led Judge Leval to conclude that “a party that does not wish to be bound can very easily protect itself by not accepting language that indicates a ‘firm commitment’ or ‘binding agreement.’ ” Tribune, 670 F.Supp. at 499. According to Ogden, in an attempt to reverse the argument, TriCon’s failure to draft a provision disclaiming an intent to be bound raises a negative inference, that no disclaimer was intended. The Arcadian Court, however, disposed of this issue by stating that “a party that wishes to be bound can very easily protect itself by refusing to accept language that shows an intent not to be bound.” Arcadian, 884 F.2d" }, { "docid": "18772006", "title": "", "text": "v. Sandhaus, 850 F.Supp. 1169, 1176 (S.D.N.Y.1994); P.A Bergner & Co. v. Martinez, 823 F.Supp. 151, 155-56 (S.D.N.Y.1993); Chrysler Capital Corp. v. Southeast Hotel Properties Ltd. Partnership, 697 F.Supp. 794, 799-800 (S.D.N.Y.1988), aff'd without op., 888 F.2d 1376 (2d Cir.1989). The parties to a “binding preliminary commitment” are contractually obligated to negotiate in good faith toward a final agreement that incorporates the major terms to which they had previously agreed. Neither party may repudiate those major terms, or engage in conduct designed to scuttle the transaction. See Teachers Ins., 670 F.Supp. at 498; P.A Bergner, 823 F.Supp. at 156. A preliminary commitment is binding on the parties if they have manifested an intention to be bound, as evidenced by their “words and deeds” at the time of the agreement. See R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 74 (2d Cir.1984); Teachers Ins., 670 F.Supp. at 499; Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 788 (Tex.Ct.App.1987) (interpreting New York law), cert. dismissed, 485 U.S. 994, 108 S.Ct. 1305, 99 L.Ed.2d 686 (1988). In determining whether a preliminary agreement is enforceable, courts generally consider: (i) the language of the agreement; (ii) the context of the negotiations; (iii) the existence of open terms; (iv) partial performance; and (v) the necessity of putting the agreement in final form, as indicated by the customary form of such transactions. See Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 72 (2d Cir.1989); see also Weinreich, 850 F.Supp. at 1177; P.A Bergner, 823 F.Supp. at 156; Texaco, 729 S.W.2d at 788-89. A party who claims that a preliminary commitment is not binding bears the burden of proving that the other parties to the agreement “should have known that the disclaiming party did not intend to be bound before the [definitive documentation] was signed.” Reprosystem, B.V. v. SCM Corp., 727 F.2d 257, 261 (2d Cir.), cert. denied, 469 U.S. 828,105 S.Ct. 110, 83 L.Ed.2d 54 (1984). The parol evidence rule, which applies to fully-integrated contracts, see Mastrangelo v. Kidder, Peabody & Co., Inc., 722 F.Supp. 1126, 1131 (S.D.N.Y.1989), does not apply to the" }, { "docid": "4494392", "title": "", "text": "of the use of these terms parallels the facts in Arcadian where the memorandum was even labeled as an “agreement” rather than in Tribune. In Tribune, the parties described the letter as a binding agreement and in Butler the parties agreed that their agreement was binding. Arcadian, 884 F.2d at 72. This acknowledgement of the binding nature of the writings present in Butler and Tribune is what led Judge Leval to conclude that “a party that does not wish to be bound can very easily protect itself by not accepting language that indicates a ‘firm commitment’ or ‘binding agreement.’ ” Tribune, 670 F.Supp. at 499. According to Ogden, in an attempt to reverse the argument, TriCon’s failure to draft a provision disclaiming an intent to be bound raises a negative inference, that no disclaimer was intended. The Arcadian Court, however, disposed of this issue by stating that “a party that wishes to be bound can very easily protect itself by refusing to accept language that shows an intent not to be bound.” Arcadian, 884 F.2d at 73. (emphasis in original). It did not state that a party was obliged to disclaim any intention to be bound precisely because it accepted Judge Leval’s reasoning in Tribune that “[t]here is a strong presumption against finding binding obligation in agreements which include open terms, call for future approvals and expressly anticipate future preparation and execution of contract documents.” Arcadian, 884 F.2d at 73 (quoting Tribune, 670 F.Supp. at 499). In this case Ogden did not' insert a Tribune-type clause indicating an intent to be bound and TriCon did not disclaim any intent to be bound. Between, the two, however, the presumption rests with an intent not to be bound given the open terms and the call for future approval of further contract negotiations. Ogden asserts that TriCon had included such language in other transactions; nevertheless, whether or not TriCon used such a disclaimer in their deals, not involving Ogden, is immaterial. See Arcadian, 884 F.2d at 73. Just as in Arcadian, the language contained in the writings fails to overcome the presumption not" }, { "docid": "16698847", "title": "", "text": "trapping parties in surprise contractual obligations that they never intended.” Id. For such reasons, “[t]here is a strong presumption against finding binding obligation in agreements which include open terms, call for future approvals and expressly anticipate future preparation and execution of contract documents.” Id. at 499. The Tribune decision describes five specific factors to use when determining whether parties have entered into a preliminary binding commitment to negotiate in good faith: “(1) the language of the agreement; (2) the context of the negotiations; (3) the existence of open terms; (4) any partial performance; and (5) the necessity of putting the agreement in final form, as indicated by the customary form of such transactions.” Spencer Trask Software & Info. Servs. LLC v. RPost Int'l, 383 F.Supp.2d 428, 446 (S.D.N.Y.2003) (citing Tribune, 670 F.Supp. at 499-503). 1. The Language of the Alleged Agreement The “first and most important” of the factors “looks to the language of the preliminary agreement for indication whether the parties considered it binding or whether they intended not to be bound until the conclusion of final formalities.” Tribune, 670 F.Supp. at 499. Courts are to look to “the context of the overall agreement” and engage in a “full consideration of the circumstances and the contract language.” Id. at 500. Plaintiff focuses on defendant’s purported failure to expressly reserve its right not to enter into a preliminary binding commitment and points to Judge Leval’s observation that “a party that does not wish to be bound at the time of the preliminary exchange of letters can very easily protect itself by not accepting language that indicates a ‘firm commitment’ or ‘binding commitment,’ ” id. at 499. Plaintiff, however, ignores the context of the negotiations at issue in Tribune. There, the court found the parties’ communications to be “replete with the terminology of binding contract.” Id. The defendant, for instance, signed one of plaintiffs proposal letters with the words “Accepted and agreed to” and opened a subsequent letter of acceptance with the phrase “Attached is an executed copy of the Commitment Letter.” Id. Here, defendant never “accepted] language that indicate[d] a" }, { "docid": "23317223", "title": "", "text": "[Protocol], not later than June 1, 2001’’; it does not state that the parties are free from further obligation under the PPSA should the Protocol negotiations fail. As the district court noted, if a contract is conditioned on the occurrence of a particular event (such as successful negotiation of a Protocol), “[t]he language of the condition must be explicit.” Tractebel, 2005 WL 146807, at *4, 2005 U.S. Dist. LEXIS 869, at * 13 (quoting Catskill Dev., L.L.C. v. Park Place Entm't Corp., 154 F.Supp.2d 696, 704 (S.D.N.Y.2001) (alteration in original)). . TEMI makes much of the preliminary agreement dichotomy explained in a decision by then-District Judge Leva! In Teachers Insurance and Annuity Association of America v. Tribune Company, Judge Leval carefully identified two types of preliminary agreements that exist under New York law. 670 F.Supp. at 498; see also Adjustrite Sys., Inc. v. GAB Bus. Servs., Inc., 145 F.3d 543, 547-48 (2d Cir.1998) (applying the Tribune preliminary agreement framework); Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 71-72 (2d Cir.1989) (same). The first type of preliminary agreement (\"Type I”) exists \"when the parties have reached complete agreement (including the agreement to be bound) on all the issues perceived to require negotiation,” although they may \"desire a more elaborate formalization of the agreement.” Tribune, 670 F.Supp. at 498. A Type I agreement is enforceable. Id. The second type of preliminary agreement (\"Type II”) “does not commit the parties to their ultimate contractual objective but rather to the obligation to negotiate the open issues in good faith.” Id. TEMI insists that the PPSA was of the second order, and, because TEMI negotiated in good faith and was unable to reach agreement with AEP on the details of the Protocol, TEMI was never bound by the PPSA. TEMI argues that the district court erred in concluding that the PPSA was an enforceable Type I agreement. In distinguishing between Type I and Type II preliminary agreements, TEMI mis-frames the issue. Although the district court discussed the Type I/Type II preliminary agreement dichotomy, ultimately the court concluded that the PPSA was not a preliminary" }, { "docid": "4494383", "title": "", "text": "complete agreement or a preliminary binding agreement to negotiate open terms in good faith a court must find the existence of an intent to be bound. See Teachers Ins. & Annuity Ass’n v. Tribune Co., 670 F.Supp. 491, 498 (S.D.N.Y.1987). In a complete agreement this intention to commit will embrace a recognition that a contract has been achieved, despite the need to memorialize in writing the agreement or attend to further formalities. Id. In a preliminary binding agreement there need not be a commitment to the underlying contract, but rather a commitment to negotiate the open issues of that agreement in good faith. Id. To determine whether an intent to form a binding obligation exists, courts focus primarily on whether the language of the documents reveals an intent not to be bound until execution of a final contract and whether the terms of the contract have been finally resolved. Arcadian, 884 F.2d at 72. See Winston, 777 F.2d at 80; R. G. Group, 751 F.2d at 75; ABC Trading Co. v. Westinghouse Elec. Supply Co., 382 F.Supp. 600, 601 (E.D.N.Y.1974). Additionally, courts may look at the context of the negotiations, whether there exist open terms, whether there has been partial performance; and the necessity or practice of the industry of putting the agreement in final form. Arcadian, 884 F.2d at 72 (citing Tribune, 670 F.Supp. at 499-503 (adopting test set forth by Judge Leval for determining whether there exists intent to be bound)). The Second Circuit applied this test in a case remarkably similar to the case at bar. In Arcadian, the court held as a matter of law, that, even where a writing is asserted to be a preliminary agreement to negotiate, a writing which anticipates execution of a final contract and which lacks an express statement that it is to be a binding contract, is unenforceable as a contract. See Arcadian, 884 F.2d at 72-73. Arcadian involved the sale of the defendant’s phosphate fertilizer business to the plaintiff with the defendant maintaining a five to twenty percent interest in the business. Id. The parties signed a one-and-a-half page" }, { "docid": "22253852", "title": "", "text": "of New York, 67 N.Y.2d 990, 494 N.E.2d 99, 502 N.Y.S.2d 994 (1986). To determine whether a preliminary manifestation of assent was a binding preliminary agreement of the second type, Judge Leval used a modified version of a test that this court devised for preliminary agreements that more closely resemble the first type. 670 F.Supp. at 498-99; see Winston v. Mediafare Entertainment Corp., 777 F.2d 78, 80 (2d Cir.1985); R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 75-76 (2d Cir.1984). Judge Leval considered whether the intent to be bound was revealed by (1) the language of the agreement; (2) the context of the negotiations; (3) the existence of open terms; (4) partial performance; and (5) the necessity of putting the agreement in final form, as indicated by the customary form of such transactions. 670 F.Supp. at 499-503. The first factor, the language of agreement, is the most important. Id. at 499; cf. Winston, 777 F.2d at 80 (if party expresses intent not to be bound until it achieves fully executed document, oral agreement will not result in binding contract); R.G. Group, 751 F.2d at 75 (considerable weight given to explicit statement that party will not be bound in absence of written agreement). In applying the Tribune test to this case, we need look no further than the first factor. The language of the November memorandum — two references to the possibility that negotiations might fail and the reference to a binding sales agreement to be completed at some future date — shows that Arcadian did not intend to be bound. Contrast the language of the November memorandum with the letters in Tribune and Butler. In Tribune, a letter described itself as a “binding agreement,” 670 F.Supp. at 494, and in Butler, the parties agreed that their agreement was binding, 626 F.Supp. at 1230. This fact was critical to Judge Leval’s reasoning in Tribune: “[A] party that does not wish to be bound, he said, “can very easily protect itself by not accepting language that indicates a ‘firm commitment’ or ‘binding agreement.’ ” 670 F.Supp. at 499. Conversely," }, { "docid": "4494387", "title": "", "text": "F.Supp. 1229 (S.D.N.Y. 1986) on which Ogden relies extensively. In Tribune, the court recog nized the existence of a preliminary agreement to negotiate, despite the existence of open terms, holding that the traditional test employed to determine whether parties intend to be bound, is less stringently applied where the agreement is one to negotiate rather than to enter into the ultimate contract. Tribune, 670 F.Supp. at 498-99. However, the Arcadian Court emphasized that, in Tribune, the writing at issue expressly stated that upon execution “our agreement ... shall become a binding agreement between us.” Id. at 494. This crucial language was not included in the memorandum agreement in Arcadian. Instead, the Arcadian memorandum included “two references to the possibility that negotiations might fail and the reference to a binding sales agreement to be completed at some future date....” Arcadian, 884 F.2d at 72. Accordingly, the Arcadian Court noted that, while the factors typically indicative of an intent to bound are applied slightly differently where a preliminary agreement is at issue, there is still a “strong presumption against finding a binding obligation in agreements which include open terms, call for future approvals and expressly anticipate future preparation and execution of contract documents.” Arcadian, 884 F.2d at 73 (quoting Tribune, 670 F.Supp. at 499). The Second Circuit concluded that, although in Tribune “the language of the. agreement argued persuasively for overcoming this presumption; here, the language of the agreement argues persuasively for letting the presumption stand,” Arcadian, 884 F.2d at 73. The Intent to be Bound and the Writings The writings in this case consist of the PPM, the TriCon June 10 letter response to the PPM, the June 20 Award letter embodying the oral discussions between Shearson and Commercial Union, and the various documents drafted, only one of which — the Trust Agreement — was executed. The writings are incapable of enforcement as a contract inasmuch as they are devoid of any indication that the parties intended them to form a binding obligation. On the contrary, the express language of the writings and the existence of numerous open terms establishes as" }, { "docid": "16222955", "title": "", "text": "Type I preliminary agreement. We affirm the judgment of the District Court to the extent that it is consistent with this holding. B. The MOU is a binding “Type II” preliminary agreement. We agree with the lower courts that the MOU is not a binding Type I preliminary agreement. We hold, however, that the intention of the parties to create a “Type II” preliminary agreement is patent in the language of the MOU, presenting us with a pure issue of law. See Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 73 (2d Cir.1989). We reverse the judgment of the District Court to the extent that it finds to the contrary. In Tribune, Judge Leval identified two core, but often competing, policy concerns relevant to preliminary agreements. The first is to “avoid trapping parties in surprise contractual obligations that they nev er intended.” 670 F.Supp. at 497; Adjustrite, 145 F.3d at 548. The second is the “enforce[ment] and perserv[ation of] agreements that were intended as binding, despite a need for further documentation or further negotiation.” 670 F.Supp. at 498; Adjustrite, 145 F.3d at 548. The path between this Scylla and Charybdis is, of course, to enforce a preliminary agreement only to the extent that the parties intend it to be binding. In this regard, “giving legal recognition to [Type II agreements] serves a valuable function in the marketplace ... permitting parties] to make plans in reliance upon their preliminary agreements and present market conditions ... [without] expending] enormous sums negotiating every detail of final contract documentation before knowing whether they have an agreement, and if so, on what terms.” Tribune, 670 F.Supp. at 499. In our view, this is exactly what these parties did when they signed the MOU. This flexibility comes with limitations, of course. While a Type I preliminary agreement is fully binding as to the final contractual goal, a Type II agreement “does not commit the parties to their ultimate contractual objective but rather to the obligation to negotiate the open issues in good faith in an attempt to reach the ... objective within the agreed framework.”" }, { "docid": "22253854", "title": "", "text": "a party that wishes to be bound can very easily protect itself by refusing to accept language that shows an intent not to be bound. See Reprosystem, 727 F.2d at 262 (reference to future formal agreement shown intent not to be bound); Chrysler Capital Corp. v. Southeast Hotel Properties Ltd. Partnership, 697 F.Supp. 794, 800-01 (S.D.N.Y.1988) (letter which stated that it would not become a binding agreement until certain conditions were met showed intent not to be bound unconditionally). In order to prevail on the breach of contract claims, Arcadian needed to show only that API “should have known that [Arcadian] did not intend to be bound before the [final] contract was signed.” Reprosystem, 727 F.2d at 261; see also V’Soske, 404 F.2d at 499 (same). The language of the November memorandum reveals just that: API should not have believed that Arcadian intended to be bound. As Judge Leval noted in Tribune, “There is a strong presumption against finding binding obligation in agreements which include open terms, call for future approvals and expressly anticipate future preparation and execution of contract documents.” Id. at 499. In Tribune, the language of the agreement argued persuasively for overcoming this presumption; here, the language of the agreement argues persuasively for letting the presumption stand. See generally International Klafter Co. v. Continental Casualty Co., 869 F.2d 96, 99 (2d Cir.1989) (under New York law, court must give effect to parties’ intent when it is clearly set forth in agreement). Appellants argue that the question whether a contract exists is ill-suited for summary judgment. On the contrary: Where “a question of intention is determinable by written agreements, the question is one of the law, appropriately decided ... on a motion for summary judgment.” Mallad Constr. Corp. v. County Fed. Sav. & Loan Ass’n, 32 N.Y.2d 285, 291, 298 N.E.2d 96, 100, 344 N.Y.S.2d 925, 930 (1973); see also Enercomp, Inc. v. McCorhill Publishing, Inc., 873 F.2d 536, 546 (2d Cir.1989) (factual question arises when intent cannot be determined from agreement); Wards Co. v. Stamford Ridgeway Assocs., 761 F.2d 117, 120 (2d Cir.1985) (summary judgment appropriate where" }, { "docid": "16467806", "title": "", "text": "language of the Term Sheet, which expressly reserves the parties’ right not to be bound by the document. The Term Sheet states: It is understood that this letter shall not be deemed to be self-executing, and that the parties’ respective legal obligations (except for the agreements in the immediately preceding paragraphs) shall arise solely from definitive documents to be entered into. Am.Compl, Ex. A, letter at 2. This language goes further than that of the memorandum in Arcadian, and demonstrates the parties’ clear intent to be bound only by forthcoming final agreements. See In re Mizlou Communications Co., Inc., No. 91 Civ. 6752, 1993 WL 36158 at *5-6 (S.D.N.Y. Feb.10, 1993) (language in term sheet stating “the terms hereof shall have no force and effect until definitive documentation containing such terms is executed” conclusively demonstrated parties’ intent not to be bound). Plaintiffs’ contention that the substantial performance by both sides demonstrates that the parties intended the Term Sheet to be binding is to no avail. In Arcadian, the Court acknowledged that there had been considerable partial performance, but nevertheless found the language of the parties’ preliminary agreement controlling. 884 F.2d at 73. As the Court observed, “a party that wishes to be bound can very easily protect itself by refusing to accept language that shows an intent not to be bound.” Id. at 73 (citing Reprosystem, B.V. v. SCM Corp., 727 F.2d 257, 262 (2d Cir.1984), cert. denied, 469 U.S. 828, 105 S.Ct. 110, 83 L.Ed.2d 54 (1984)). Plaintiffs cite I.R.V. Merchandising Corp. v. Jay Ward Productions, Inc., 856 F.Supp. 168 (S.D.N.Y.1994), in support of their argument that the language of the Term Sheet should not be outcome determinative. In I.R.V., the court found that partial performance, among other factors, created issues of fact regarding the parties’ intent to be bound by a preliminary memorandum, despite language in the memorandum that explicitly contemplated the drafting of a later contract. However, the court failed to find the language of the memorandum conclusive, in part because of the presence in the document of contradictory statements that supported an intent to be bound." }, { "docid": "20085672", "title": "", "text": "parties. “Where parties’ intent cannot be conclusively determined as a matter of law from the terms of the agreement at issue, a factual question arises.... ‘[T]he objective manifestations of the intent of the parties as gathered by their expressed words and deeds’ are the appropriate focus of inquiry.” Enercomp, Inc. v. McCorhill Publishing, Inc., 873 F.2d 536, 546 (2d Cir.1989) (quoting Brown Bros. Elec. Contractors, Inc. v. Beam Constr. Corp., 41 N.Y.2d 397, 399, 393 N.Y.S.2d 350, 352, 361 N.E.2d 999 (1977)) (other citations omitted). As the Second Circuit has stated, “New York follows the generally accepted rule that when parties negotiating a proposed contract express an agreement not to be bound until their negotiations have culminated in the execution of a formal contract, they cannot be bound until that event has occurred.” Jim Bouton Corp. v. Wm. Wrigley Jr. Co., 902 F.2d 1074, 1081 (2d Cir.), cert. denied, — U.S. —, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990) (mailgram stating terms and referring to drawing up of “final papers” was not binding agreement). In considering the legal effect of a preliminary agreement between contracting parties, courts in this Circuit have declared that “ ‘[m]ore is needed than agreement on each detail [to create a binding obligation. There must be] overall agreement ... to enter into the binding contract.’ ” Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 72 (2d Cir.1989) (quoting Teachers Ins. & Annuity Ass’n v. Tribune Co., 670 F.Supp. 491, 497 (S.D.N.Y.1987)). Among the factors a court will consider are “(1) the language of the agreement; (2) the context of the negotiations; (3) the existence of open terms; (4) partial performance; and (5) the necessity of putting the agreement in final form, as indicated by the customary form of such transactions. The first factor, the language of the agreement, is the most important.” Id. (citations omitted); see also Winston v. Mediafare Entertainment Corp., 777 F.2d 78, 80 (2d Cir.1985). “There is a strong presumption against finding binding obligation in agreements which include open terms, call for future approvals and expressly anticipate future preparation and execution of" }, { "docid": "16222957", "title": "", "text": "Adjustrite, 145 F.3d at 548 (internal quotation marks omitted). “This obligation does not guarantee that the final contract will be concluded if both parties comport with their obligation, as good faith differences in the negotiation of the open issues may prevent a reaching of final contract.” Tribune, 670 F.Supp. at 498. Whether the differences that have terminated the parties’ working relationship in this case reflect good faith is a question for the District Court on remand. The considerations relevant to whether a preliminary agreement is a binding Type II agreement are: (1) whether the intent to be bound is revealed by the language of the agreement; (2) the context of the negotiations; (3) the existence of open terms; (4) partial performance; and (5) the necessity of putting the agreement in final form, as indicated by the customary form of such transactions. See Arcadian, 884 F.2d at 72; Williston on CONTRACTS, § 4:8. While some of these factors are the same as those applied to determine whether a document is a Type I preliminary agreement, they “have a somewhat different significance where ... the nature of the contract alleged is that it commits the parties in good faith to negotiate the open terms.” Tribune, 670 F.Supp. at 499. More to the point, if the question posed is whether the parties have agreed to proceed within an open framework toward a contractual goal, leaving necessary terms for later negotiation, rather than whether the parties have agreed to achieve the ultimate contractual goal, then the language of the agreement, its contents and omissions, and the context in which it was negotiated and signed, may lead to different conclusions. The essence of a Type II preliminary agreement is that it creates an “obligation to negotiate the open issues in good faith in an attempt to reach the [ultimate contractual objective] within the agreed framework.” Tribune, 670 F.Supp. at 498; see also Adjustrite, 145 F.3d at 548. Measuring the MOU by the relevant factors in light of this limited contractual goal it is clear that it is a binding preliminary agreement to work toward the" }, { "docid": "4494382", "title": "", "text": "at 58, (citing Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986) cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987)). In a contract case “where ‘a question of intention is determinable by written agreements, the question is one of the law, appropriately decided ... on a motion for summary judgment.’ ” Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 73 (2d Cir.1989) (citing Mallad Constr. Corp. v. County Fed. Sav. & Loan Ass’n, 32 N.Y.2d 285, 291, 298 N.E.2d 96, 100, 344 N.Y.S.2d 925, 930 (1973)). In the present case, the facts are to be viewed in the light most favorable to Ogden, the non-moving party, with all reasonable inferences drawn in its favor. The Governing Law It is an elemental principle of contract law that no contract can be formed unless the parties intend to be bound. Winston v. Mediafare Entertainment Corp., 777 F.2d 78, 80 (2d Cir.1985); R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 74 (2d Cir.1984). To find either a complete agreement or a preliminary binding agreement to negotiate open terms in good faith a court must find the existence of an intent to be bound. See Teachers Ins. & Annuity Ass’n v. Tribune Co., 670 F.Supp. 491, 498 (S.D.N.Y.1987). In a complete agreement this intention to commit will embrace a recognition that a contract has been achieved, despite the need to memorialize in writing the agreement or attend to further formalities. Id. In a preliminary binding agreement there need not be a commitment to the underlying contract, but rather a commitment to negotiate the open issues of that agreement in good faith. Id. To determine whether an intent to form a binding obligation exists, courts focus primarily on whether the language of the documents reveals an intent not to be bound until execution of a final contract and whether the terms of the contract have been finally resolved. Arcadian, 884 F.2d at 72. See Winston, 777 F.2d at 80; R. G. Group, 751 F.2d at 75; ABC Trading Co. v. Westinghouse Elec. Supply Co.," } ]

[ { "docid": "7079825", "title": "", "text": "242, 54 L.Ed.2d 164 (1977); United States v. Marion 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). See also United States v. McDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1982). However, due process does have a limited role in protecting- defendant’s rights against oppressive delay. Lovasco, 431 U.S. at 789, 97 S.Ct. at 2048. A court must consider both the prejudice and the reasons for the delay. Id. at 790, 97 S.Ct. at 2048. However, courts are “to determine only whether the action complained of ... 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’.” Lovasco, 431 U.S. at 790, 97 S.Ct. at 2049 (citations omitted). This Court previously has stated that “[djismissal for preindictment delay is warranted only when the defendant shows substantial prejudice to his right to a fair trial and that the delay was an intentional device by the government to gain a tactical advantage.” United States v. Brown, 667 F.2d 566 (6th Cir.1982) (per curiam), citing 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). To have this indictment dismissed Greene must meet both parts of the test. We consider the latter part of the- test first. The defendant has made no showing that the delay between the alleged incident and the indictment was an intentional device on the part of the Government to gain a decided tactical advantage in its prosecution. The lapse' of twelve and one-half months between the alleged incidents and the actual indictment was the result of investigative delay and the Government’s efforts to make out its best case against Greene. Greene, in arguing for dismissal before the district court, stated that as early as March 23,1981 the Government had incriminating evidence against him and therefore he should have been indicted at that time. This is precisely the type of argument rejected by the" } ]

[ { "docid": "1468676", "title": "", "text": "delay in charging him violated due process. Parker asserts that the delay was unnecessarily long and that the State had no justification for it. Further, Parker asserts that the delay prevented him from presenting favorable witnesses. Although Parker invokes the Supreme Court’s decision in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), Parker also relies on Monzo v. Edwards, 281 F.3d 568 (6th Cir.2002). In Parker’s assessment, Monzo holds that delay in commencing prosecution is unjustifiable when, through negligence or error, the state ceases to investigate, and later, without new evidence, decides to prosecute. The State responds that (1) Parker caused much of the delay; (2) the delay failed to prejudice him; and (3) Parker’s citation to Monzo is inapposite. ■ In certain cases, the Due Process Clause protects against preindictment delay. The Due Process Clause “requires the dismissal of an indictment ... if the defendant can prove that the Government’s delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him actual prejudice in presenting his defense.” United States v. Gouveia, 467 U.S. 180, 192, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984) (citing United State v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)). In accordance with the Supreme Court’s rule, we have consistently held that “[dismissal for pre- ' indictment delay is warranted only when the defendant shows [1] substantial prejudice to his right to a fair trial and [2] that the delay was an intentional device by the government to gain a tactical advantage.” Brown, 959 F.2d at 66 (alteration in original) (citations omitted) (internal quotation marks omitted). In this case, the Michigan Court of Appeals reasonably concluded that Parker failed to show that the State’s delay in charging him was an intentional device to gain a tactical advantage. Although there appears to be no justification for the delay, Parker has presented inadequate evidence of improper intent. Parker argues that one can infer" }, { "docid": "11307711", "title": "", "text": "engaging in more or less the same practices, also possessed the requisite intent.” Combs, 369 F.3d at 940 (quotation omitted). As was the case in Combs, the record shows that Sergeant Meyer “did not actually testify regarding the intent of the defendant to distribute drugs. Rather, he testified regarding conduct that would be consistent with an intent to distribute and left to the jury the final conclusion regarding whether the defendant actually possessed the requisite intent.” Id. Accordingly, the district court did not abuse its discretion in permitting Sergeant Meyer’s testimony. V. Montgomery unsuccessfully sought to dismiss the first superseding indictment pursuant to Federal Rule of Criminal Procedure 48(b), arguing that he suffered substantial prejudice and a violation of his due process rights because of the government’s intentional delay in bringing the drug-distribution charge. He asserts that he was prejudiced by the delay in two ways — he was unable to locate two potential witnesses, and he spent a considerable amount of time formulating a defense based solely upon the original firearm-possession charge. “[T]he Due Process Clause of the Fifth Amendment protects against oppressive pre-indictment delay,” but dismissal is called for “only when the defendant shows substantial prejudice to his right to a fair trial and that the delay was an intentional device by the government to gain a tactical advantage.” United States v. Schaffer, 586 F.3d 414, 424 (6th Cir.2009) (citation and internal quotation marks omitted). “The standard for pre-indictment delay is nearly insurmountable, especially because proof of actual prejudice is always speculative.” United States v. Rogers, 118 F.3d 466, 477 n. 10 (6th Cir.1997). “Witness unavailability constitutes prejudice only if the defendant shows that the delay relates to the witness’s absence.” United States v. Thomas, 404 Fed.Appx. 958, 961 (6th Cir.2010) (citation and internal quotation marks omitted). “[B]are assertions, without supporting evidence, are not sufficient to demonstrate prejudice.” United States v. Vaughn, 444 Fed.Appx. 875, 879 (6th Cir.2011) (citation and internal quotation marks omitted). Although Montgomery alleged in his motion to dismiss that there were “possible witnesses,” whereabouts unknown, who would provide exculpatory testimony at trial if they" }, { "docid": "11307712", "title": "", "text": "Process Clause of the Fifth Amendment protects against oppressive pre-indictment delay,” but dismissal is called for “only when the defendant shows substantial prejudice to his right to a fair trial and that the delay was an intentional device by the government to gain a tactical advantage.” United States v. Schaffer, 586 F.3d 414, 424 (6th Cir.2009) (citation and internal quotation marks omitted). “The standard for pre-indictment delay is nearly insurmountable, especially because proof of actual prejudice is always speculative.” United States v. Rogers, 118 F.3d 466, 477 n. 10 (6th Cir.1997). “Witness unavailability constitutes prejudice only if the defendant shows that the delay relates to the witness’s absence.” United States v. Thomas, 404 Fed.Appx. 958, 961 (6th Cir.2010) (citation and internal quotation marks omitted). “[B]are assertions, without supporting evidence, are not sufficient to demonstrate prejudice.” United States v. Vaughn, 444 Fed.Appx. 875, 879 (6th Cir.2011) (citation and internal quotation marks omitted). Although Montgomery alleged in his motion to dismiss that there were “possible witnesses,” whereabouts unknown, who would provide exculpatory testimony at trial if they could be located, he did not identify these witnesses until the first day of his trial. As it turns out, the potential witnesses were two women who allegedly were the renters of the house on Roanoke Street at the time of the January 2008 raid. It was Montgomery’s theory that these witnesses would testify that he was merely a social invitee in the home on the day in question; however, whether he rented, lived in, or owned the residence is neither determinative of his guilt or innocence on both counts nor exculpatory in nature. Montgomery offered no insights into his steps taken to locate these witnesses or how the delay in issuing the superseding indictment corresponded to their inability to testify. The district court did not err in finding the claim to be speculative. Likewise, Montgomery’s claim that preparation of his defense was compromised by the belated addition of the cocaine charge rings hollow. Both counts stemmed from the same event, and the drug-distribution charge was based upon information that was known to Montgomery from" }, { "docid": "8663342", "title": "", "text": "U.S. -, 130 S.Ct. 1921, 176 L.Ed.2d 391 (2010). 1. Substantial Prejudice “The standard for pre-indictment delay is nearly insurmountable, especially because proof of actual prejudice is always speculative.” United States v. Rogers, 118 F.3d 466, 477 n. 10 (6th Cir.1997). Thomas has not met the high bar for demonstrating substantial prejudice. Thomas claims that, due to the delay, evidence relating to his provision of treatment at the Ganesh Clinic — treatment records, phone records, and Dr. Ganesh’s testimony about Dumas’s condition and clinic billing policies — has become unavailable. The absence of this evidence is not prejudicial, however, because the indictment charged Thomas with crimes occurring after the Ganesh Clinic closed in 1996, and, further, all of the charges on which Thomas was tried arose after April 5, 2002. Facts relating to treatment at a clinic that closed in 1996 are irrelevant. The other source of alleged prejudice is Thomas’s inability to locate another one of Dumas’s treating physicians, Dr. Wayne Dwyer. Thomas had hoped that Dwyer' would testify about Dumas’s condition and Thomas’s billing records. Witness unavailability constitutes prejudice only if the defendant shows that the delay relates to the witness’s absence. See United States v. Wright, 343 F.3d 849, 860 (6th Cir.2003), cert. denied,, 541 U.S. 990, 124 S.Ct. 2016, 158 L.Ed.2d 496 (2004) (holding that the defendant did not suffer prejudice from absent witnesses because he “presented no evidence concerning who these witnesses [were] or how the delay in the indictment corresponds to their inability to testify ” (emphasis added)). Here, even if Dwyer’s testimony could have aided Thomas’s case, Thomas has not explained when Dwyer became unavailable or why he was unavailable at the time of trial. As a result, Thomas has not demonstrated prejudice. 2. Intentional, Tactical Delay Nor has Thomas attempted to show that the pre-indictment delay was an intentional, tactical maneuver on the government’s part. This court “neither imputes nor presumes an improper purpose,” instead requiring the defendant “to demonstrate that the Government had no valid reason for the delay.” Schaffer, 586 F.3d at 426 (internal quotation marks omitted) (holding that a" }, { "docid": "5596659", "title": "", "text": "test set forth in 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), the Ohio Supreme Court held that “unjustifiable delay between the commission of an offense and a defendant’s indictment therefor, which results in actual prejudice to the defendant, is a violation of the right to due process.” 472 N.E.2d at 1099 (syllabus). Delay in commencing prosecution is unjustifiable when the state uses delay to gain a tactical advantage over the defendant, or through negligence or error ceases to investigate, and later, without new evidence, decides to prosecute. Luck, 472 N.E.2d at 1105. The district court rejected this claim on the merits, reasoning as follows: While the acceptability of a pre-indictment delay is generally measured by the applicable statute of limitations, the Fifth Amendment also imposes due process restraints on the length of a pre-indictment delay. See United States v. Atisha, 804 F.2d 920, 928 (6th Cir.1986). In assessing claims of pre-indictment delay, this court applies the two-part test set forth in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). See United States v. Brown, 959 F.2d 63, 66 (6th Cir.1992). A defendant must demonstrate that (1) he suffered substantial prejudice to his right to a fair trial as a result of the delay; and (2) the government purposely delayed in order to gain a tactical advan tage over the defendant. See Brown, 959 F.2d at 66. In the present case, even if the Court assumes arguendo that petition[er] was prejudiced by the delay, petitioner cannot demonstrate that the prosecution purposely delayed in order to gain a tactical advantage over the defendant. Petitioner was not identified as the perpetrator until 1993. No evidence has been presented that would indicate that petitioner could have been identified sooner. Petitioner’s appellate counsel was not ineffective for failing to raise on direct appeal assignments of error relating to trial counsel’s failure to seek dismissal of the indictment based on the statute of limitations and pre-trial delay. Petitioner" }, { "docid": "1053996", "title": "", "text": "Mejias, 552 F.2d at 442. Even if we consider that “[invocation of the speedy trial provision need not await ... formal charge,” Marion, 404 U.S. at 321, 92 S.Ct. at 463, we must find some evidence of an official accusation on federal charges. It is simply not sufficient that the state and federal charges arose from the same incident. Thus, it is clear that a federal accusation was not present in this case until Marler was indicted on the civil rights charge. II. DUE PROCESS CLAIM Having determined that Marler’s sixth amendment rights did not attach until his federal indictment, we next consider whether the lengthy pre-indictment delay violated Marler’s due process rights. Although statutes of limitations are “ ‘the primary guarantee against bringing overly stale criminal charges,’ ” United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971) (quoting United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966)), the Supreme Court has held that “the Due Process Clause has a limited role to play in protecting against oppressive delay.” United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). To prevail on a due process challenge, a defendant bears the heavy burden of showing that the delay in indictment caused him actual prejudice and that the delay was “undertaken by the Government solely ‘to gain tactical advantage over the accused.’” Id. at 795, 97 S.Ct. at 2051 (quoting Marion, 404 U.S. at 324, 92 S.Ct. at 465). See also United States v. Capone, 683 F.2d 582, 589 (1st Cir.1982); United States v. Ciampaglia, 628 F.2d 632, 639 (1st Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 221 (1980); United States v. Lieberman, 608 F.2d 889, 902 (1st Cir.1979), cert. denied, 444 U.S. 1019, 100 S.Ct. 673, 62 L.Ed.2d 649 (1980); United States v. Indelicato, 611 F.2d 376, 383 (1st Cir.1979). Marler asserts that the government’s delay in indicting him actually prejudiced his ability to present his defense in three ways. First, he notes that in the 54" }, { "docid": "18747141", "title": "", "text": "or indicted. United States v. Marion, 404 U.S. 307, 312-13, 92 S.Ct. 455, 459, 30 L.Ed.2d 468, 474 (1971); Stoner v. Graddick, 751 F.2d 1535, 1541 (11th Cir.1985). Because the delay alleged in this case occurred prior to indictment, the sixth amendment is inapplicable. Appellants also contend that the pre-indictment delay violated their fifth amendment due process rights. The “Due Process Clause has a limited role to play” in protecting against the prejudice of preindictment delay. United States v. Lovasco, 431 U.S. at 789, 97 S.Ct. at 2048, 52 L.Ed.2d at 758. To show a due process violation, the defendant has the burden of showing: (1) that the delay caused actual prejudice to the conduct of his defense, and (2) that the delay was the product of deliberate action by the government designed to gain a tactical advantage. United States v. Warren, 772 F.2d 827, 836 (11th Cir. 1985). See United States v. Marion, 404 U.S. at 321-27, 92 S.Ct. at 463-67, 30 L.Ed.2d at 479-82. This standard is “an exceedingly high one.” Tiemens v. United States, 724 F.2d 928, 929 (11th Cir.1984). The district court found that appellants Butler and Waites had made no specific showings of prejudice sufficient to justify dismissal. Prejudice is not to be presumed because of a lengthy delay in initiating prosecution. Stoner v. Graddick, 751 F.2d at 1544. “Speculative allegations, such as general allegation of loss of witnesses and failure of memories, are insufficient to demonstrate the actual prejudice required____” United States v. Radue, 707 F.2d 493, 495 (11th Cir.), cert. denied, 464 U.S. 916, 104 S.Ct. 281, 78 L.Ed.2d 259 (1983) (quoting United States v. McGough, 510 F.2d 598, 604 (5th Cir.1975)). “When a defendant asserts prejudice because of the loss of evidence, he must show that the loss impaired his ability to prove a meaningful defense.” Stoner v. Graddick, 751 F.2d at 1544 (quoting United States v. Solomon, 686 F.2d 863, 872 (11th Cir.1982)). The district court determined that Holmes suffered prejudice due to the lengthy preindictment delay, but concluded that the government did not deliberately delay prosecution to gain a tactical" }, { "docid": "21270768", "title": "", "text": "apply to pre-arrest delay, the Marion Court explained that “ ‘the applicable statute of limitations ... is ... the primary guarantee against bringing overly stale criminal charges.’ ” 404 U.S. at 322, 92 S.Ct. 455 (quoting United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966) (alteration in original)). Brown does not allege that the three-year delay before charges were brought against him violates the statute of limitations, which has a ten-year duration. See 18 U.S.C. § 3283. The Marion Court noted, however, “that the statute of limitations does not fully define [a person’s] rights with respect to the events occurring prior to indictment.” 404 U.S. at 324, 92 S.Ct. 455. The Court explained that due-process protections “would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” Id. “Thus Manon makes clear 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.” United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). We have interpreted Marion and Lovasco to hold that both conditions (improper reasons for delay and prejudice) are necessary for a due-process violation. Sanders, 452 F.3d at 581 n. 6. When assessing whether these conditions are met, we are “to determine only whether the action complained of ... violates those fundamental conceptions of justice [that] lie at the base of our civil and political institutions, and [that] define the community’s sense of fair play and decency.” Lovasco, 431 U.S. at 790, 97 S.Ct. 2044 (internal citations and quotation marks omitted); Sanders, 452 F.3d at 580. Brown fails to meet either condition. First, Brown offers no proof that the delay was a deliberate ploy by the Government to gain a tactical advantage. Brown merely states, without support," }, { "docid": "16661458", "title": "", "text": "v. Brown, 667 F.2d 566, 568-69 (6th Cir.1982) (affirming conviction where defendants failed to demonstrate that destruction of evidence during delay substantially prejudiced them). At oral argument, Vaughn’s counsel admitted that Vaughn objected to the test results solely because of his general distrust for the government rather than case-specific concerns. Because nothing in the record supports Vaughn’s theory that the destroyed evidence would have favored him, we find no prejudice. 3. Loss of Memory Vaughn last claims that the pre-indictment delay impaired Burrow’s memory at trial. As evidence, he points to Burrow’s inability at trial to remember that someone showed him a photograph of Vaughn (and only Vaughn’s photograph) before Burrow identified Vaughn as the drug dealer. Vaughn deduces from this that the court should also question Burrow’s memory on other details, such as his ability to recall the appearance of the drug dealer without the aid of a photograph. “[L]oss of memory is an insufficient reason to establish prejudice,” however. United States v. Wright, 343 F.3d 849, 860 (6th Cir.2003); see also Payne v. Rees, 738 F.2d 118, 121-22 (6th Cir.1984) (agreeing with trial judge that defendant failed to make “difficult and necessary initial showing of actual prejudice” even though delay caused defendant to rely on memories of others to recall details in support of his alibi). As Duncan explained, the due process inquiry traces back to the question whether a delay “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,” 763 F.2d at 222 (quoting United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977)) (internal quotation marks omitted). The possibility that “memories will dim ... [is] not in [itself] enough to demonstrate that [defendant] cannot receive a fair trial and to therefore justify the dismissal of the indictment,” id. (quoting Marion, 404 U.S. at 325-26, 92 S.Ct. 455). As in Duncan and in Marion, the prejudice Vaughn alleges falls short of triggering “fundamental conceptions of justice.” Not only does the statute of" }, { "docid": "16661461", "title": "", "text": "seeing the photograph did not prejudice his defense. 4. No Presumption of Prejudice Applies Failing to demonstrate actual prejudice, Vaughn implores the panel to presume prejudice from the length of the delay, citing to Doggett v. United States, 505 U.S. 647, 658, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (recognizing that a presumption of prejudice, though unspecified, may apply in a Sixth Amendment speedy-trial case involving an eight-and-a-half-year delay and other factors such as negligence). This court refused to apply the Doggett presumption to Fifth Amendment pre-in-dictment delay challenges in Schaffer, noting that several Supreme Court cases support this position. See Schaffer, 586 F.3d at 425 (citing Gouveia, 467 U.S. at 192,104 S.Ct. 2292; Lovasco, 431 U.S. at 789, 97 S.Ct. 2044; Marion, 404 U.S. at 326, 92 S.Ct. 455). Schaffer forecloses Vaughn’s argument in this circuit. Vaughn’s pre-indictment delay does not violate the Fifth Amendment, as he cannot show actual prejudice. B. No Tactical Intent to Benefit from the Delay In the alternative, Vaughn’s pre-indictment delay argument also fails because “[t]he burden is on the defendant to show ‘that the delay between the alleged incident and the indictment was an intentional device on the part of the Government to gain a decided tactical advantage in its prosecution.’ ” Schaffer, 586 F.3d at 425-26 (quoting United States v. Greene, 737 F.2d 572, 574 (6th Cir.1984)). In an effort to carry that burden, Vaughn infers that, since the prosecution added counts to the superseding indictment only after the mistrial, the prosecution brought the new charges because of the mistrial. The government admits as much, but points out that nothing in the record suggests that it caused the delay itself for a tactical purpose. “[A] defendant’s Fifth Amendment due process rights are generally not implicated where the government offers a valid reason for the delay.” United States v. Brown, 959 F.2d 63, 66 (6th Cir.1992) (citing United States v. DeClue, 899 F.2d 1465, 1469 (6th Cir.1990)). The government cited its re-evaluation after the mistrial and its hope to cure the evidentiary shortfall with the new charges in the second superseding indictment. Consistent" }, { "docid": "3089401", "title": "", "text": "Amendment’s Due Process Clause, the following analysis is to be applied: [ T]he burden [is] on the defendant to prove actual prejudice. Assuming the defendant can establish actual prejudice, then the court must balance the defendant’s prejudice against the government’s justification for delay. “The basic inquiry then becomes whether the government’s action in prosecuting after substantial delay violates ‘fundamental conceptions of justice’ or ‘the community’s sense of fair play and decency.’” Howell v. Barker, 904 F.2d 889, 895 (4th Cir.) (quoting United States v. Automated Med. Labs., 770 F.2d 399, 404 (4th Cir.1985)), cert. denied, 498 U.S. 1016, 111 S.Ct. 590, 112 L.Ed.2d 595 (1990). A. The Commonwealth first contends that we should overrule Howell because it is irreconcilable with a number of Supreme Court cases, including United States v. Gouveia, 467 U.S. 180, 192, 104 S.Ct. 2292, 2299-2300, 81 L.Ed.2d 146 (1984), in which then-justice Rehnquist, writing for the Court, explained that in order to establish a due process violation based upon pre-indictment delay, a defendant must show not only actual prejudice, but also that the government deliberately caused the delay for tactical gain: [ T]he Fifth Amendment [due process guarantee] requires the dismissal of an indictment, even if it is brought within the statute of limitations, if the defendant can prove that the Government’s delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him actual prejudice in presenting his defense. Id. (emphasis added); see also United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971) (“[T]he [Due Process Clause] would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this ease caused substantial prejudice to appellees’ right to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” (emphasis added)); cf. United States v. Lovasco, 431 U.S. 783, 795, 97 S.Ct. 2044, 2051, 52 L.Ed.2d 752 (1977) (“[investigative delay is fundamentally unlike delay undertaken by the Government solely ‘to gain tactical advantage over the accused.’” (quoting Marion," }, { "docid": "3089402", "title": "", "text": "that the government deliberately caused the delay for tactical gain: [ T]he Fifth Amendment [due process guarantee] requires the dismissal of an indictment, even if it is brought within the statute of limitations, if the defendant can prove that the Government’s delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him actual prejudice in presenting his defense. Id. (emphasis added); see also United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971) (“[T]he [Due Process Clause] would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this ease caused substantial prejudice to appellees’ right to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” (emphasis added)); cf. United States v. Lovasco, 431 U.S. 783, 795, 97 S.Ct. 2044, 2051, 52 L.Ed.2d 752 (1977) (“[investigative delay is fundamentally unlike delay undertaken by the Government solely ‘to gain tactical advantage over the accused.’” (quoting Marion, 404 U.S. at 324, 92 S.Ct. at 465)); Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988) (“We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”). On the authority of Gouveia, Marion, Lovasco, and Youngblood, every circuit, other than our own and the Ninth Circuit, has indeed held that, in order to establish that a lengthy pre-indictment delay rises to the level of a due process violation, a defendant must show not only actual substantial prejudice, but also that “the government intentionally delayed the indictment to gain an unfair tactical advantage or for other bad faith motives.” United States v. Crooks, 766 F.2d 7, 11 (1st Cir.) (Breyer, J.) (internal quotation marks omitted), cert. denied, 474 U.S. 996, 106 S.Ct. 421, 88 L.Ed.2d 362 (1985); see also, e.g., United States v. Lebron-Gonzalez, 816 F.2d 823, 831 (1st Cir.), cert. denied, 484 U.S. 843, 108" }, { "docid": "5617316", "title": "", "text": "Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Moreover, the speedy trial clause does not “require the Government to discover, investigate, and accuse any person within any particular period of time.” United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); see also United States v. Loud Hawk, 474 U.S. 302, 312, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986). Because Schaffer was neither arrested for violating federal law nor officially accused of doing so prior to his indictment on February 27, 2008, the protections of the Sixth Amendment were not triggered in this case before that date. Schaffer’s claims about pre-indictment delay must therefore be resolved in the context of the Fifth Amendment. The Supreme Court recognizes that the Due Process Clause of the Fifth Amendment protects against oppressive pre-indictment delay. See, e.g., Marion, 404 U.S. at 324-25, 92 S.Ct. 455; United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). In this circuit, dismissal for pre-indictment delay “is warranted only when the defendant shows substantial prejudice to his right to a fair trial and that the delay was an intentional device by the government to gain a tactical advantage.” United States v. Greene, 737 F.2d 572, 574 (6th Cir.1984) (quoting United States v. Brown, 667 F.2d 566 (6th Cir.1982) (per curiam)). Schaffer contends that he was prejudiced because his own recollection of what occurred in 2003 had obviously faded five years later. He also asserts that the Government’s evidence failed to “include any record of conversations” he had with Arvidson or “any record of their beliefs and understandings at the time regarding the manner, means, method and content of the information they obtained....” Despite these general allegations, Schaffer points to no examples of actual prejudice. He does not contend that he was unable to assist in his own defense, nor does he suggest that witnesses were unavailable or that specific evidence had been lost or destroyed. Simply put, Schaffer falls far short of demonstrating that he was actual ly and substantially prejudiced" }, { "docid": "8663341", "title": "", "text": "for judgment in favor of the defendant notwithstanding the verdict or, in the alternative, for a new trial.” R. 47. At sentencing, the district court departed downward from the sentencing guidelines because Thomas has stage-four sarcoidosis and had been hospitalized repeatedly. Accordingly, the court sentenced Thomas to one day (time served) in prison and two years of supervised release, along with restitution of $58,175.75 and suspension of Thomas’s practice as a social worker. II. ANALYSIS A. Pre-Indictment Delay We review pre-indictment delay de novo because it involves “a mixed question of law and fact.” United States v. Brown, 498 F.3d 523, 527 (6th Cir.), cert. denied, 552 U.S. 1050, 128 S.Ct. 674, 169 L.Ed.2d 528 (2007). Pre-indictment delay violates the Fifth Amendment’s Due Process Clause only if the defendant can show (1) “substantial prejudice to his right to a fair trial” and (2) “that the delay was an intentional device by the government to gain a tactical advantage.” United States v. Schaffer, 586 F.3d 414, 424 (6th Cir.2009) (internal quotation marks omitted), cert. denied, — U.S. -, 130 S.Ct. 1921, 176 L.Ed.2d 391 (2010). 1. Substantial Prejudice “The standard for pre-indictment delay is nearly insurmountable, especially because proof of actual prejudice is always speculative.” United States v. Rogers, 118 F.3d 466, 477 n. 10 (6th Cir.1997). Thomas has not met the high bar for demonstrating substantial prejudice. Thomas claims that, due to the delay, evidence relating to his provision of treatment at the Ganesh Clinic — treatment records, phone records, and Dr. Ganesh’s testimony about Dumas’s condition and clinic billing policies — has become unavailable. The absence of this evidence is not prejudicial, however, because the indictment charged Thomas with crimes occurring after the Ganesh Clinic closed in 1996, and, further, all of the charges on which Thomas was tried arose after April 5, 2002. Facts relating to treatment at a clinic that closed in 1996 are irrelevant. The other source of alleged prejudice is Thomas’s inability to locate another one of Dumas’s treating physicians, Dr. Wayne Dwyer. Thomas had hoped that Dwyer' would testify about Dumas’s condition and Thomas’s" }, { "docid": "16661454", "title": "", "text": "district court’s legal conclusions de novo and its findings of fact for clear error or abuse of discretion.” United States v. Utesch, 596 F.3d 302, 306 (6th Cir.2010). We review the determination of pre-indictment delay de novo because it “raises a mixed question of law and fact.” United States v. Brown, 498 F.3d 523, 527 (6th Cir.2007) (citing United States v. Sanders, 452 F.3d 572, 576 (6th Cir.2006)). In denying dismissal, the district court appeared to rely on the statute of limitations to conclude that no constitutional violation occurred. But “the statute of limitations does not fully define the appellees’ rights with respect to the events occurring prior to indictment.” United States v. Manon, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Rather, “the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that ... pre-indictment delay ... caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” United States v. Rogers, 118 F.3d 466, 474-75 (6th Cir.1997) (quoting Marion, 404 U.S. at 324, 92 S.Ct. 455) (internal quotation marks omitted); see United States v. Schaffer, 586 F.3d 414, 425 (6th Cir.2009) (“[I]n order to establish a due process violation, the defendant must show that the delay ‘caused him actual prejudice in presenting his defense.’ ” (quoting United States v. Gouveia, 467 U.S. 180, 192, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984))). Because violations of the Due Process Clause may occur even within the limitations period, we address de novo the two elements of the constitutional test: actual prejudice and tactical intent. A. Absence of Prejudice “The standard for pre-indictment delay is nearly insurmountable, especially because proof of actual prejudice is always speculative.” Rogers, 118 F.3d at 477 n. 10 (citing United States v. Mays, 549 F.2d 670, 682 (9th Cir.1977) (Ely, J., dissenting)). Vaughn contends that he suffered actual prejudice in three ways, each separately analyzed below. 1. Missing Witness Vaughn posits that the pre-indictment delay prevented him from tracking down" }, { "docid": "5617315", "title": "", "text": "the $100,000 payment constitute overt acts in furtherance of the conspiracy. Indeed, “[c]ase law gives ample support to the proposition that payment is an integral and often final term in a conspiracy.” United States v. Fitzpatrick, 892 F.2d 162, 167 (1st Cir.1989) (quoting United States v. Hamilton, 689 F.2d 1262, 1270 (6th Cir.1982), cert. denied, 459 U.S. 1117, 103 S.Ct. 753, 74 L.Ed.2d 971 (1983)). Because the indictment was returned within five years of the last act in furtherance of the conspiracy, no statute of limitations violation occurred. D. Schaffer argues that the district court erred in failing to dismiss the indictment based upon pre-indictment delay and resulting prejudice. Pre-indictment delay and post-indictment delay present separate issues. The former is governed by the Fifth Amendment, see United States v. Rogers, 118 F.3d 466, 475-76 (6th Cir.1997), while the latter is a Sixth Amendment matter, see United States v. Graham, 128 F.3d 372, 374 (6th Cir.1997). The Sixth Amendment right to a speedy trial does not come into play until “arrest, indictment or other official accusation.” Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Moreover, the speedy trial clause does not “require the Government to discover, investigate, and accuse any person within any particular period of time.” United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); see also United States v. Loud Hawk, 474 U.S. 302, 312, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986). Because Schaffer was neither arrested for violating federal law nor officially accused of doing so prior to his indictment on February 27, 2008, the protections of the Sixth Amendment were not triggered in this case before that date. Schaffer’s claims about pre-indictment delay must therefore be resolved in the context of the Fifth Amendment. The Supreme Court recognizes that the Due Process Clause of the Fifth Amendment protects against oppressive pre-indictment delay. See, e.g., Marion, 404 U.S. at 324-25, 92 S.Ct. 455; United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). In this circuit, dismissal for pre-indictment delay" }, { "docid": "15131505", "title": "", "text": "four years after the crime for which he was charged was committed. As the Supreme Court stated in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468.(1971), the statute of limitations is “ ‘the primary guarantee against bringing overly stale criminal charges.’ ” Id. at 322, 92 S.Ct. 455 (quoting United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966)). A set period within which prosecution must be initiated safeguards citizens from standing trial on charges whose underlying facts have grown dim with age, and from having to face possible punishment because of acts committed in the distant past. See Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). Accordingly, we have held that timely brought criminal prosecutions are only rarely dismissed. See United States v. Lawson, 683 F.2d 688, 694 (2d Cir.1982). In the present case the indictment was filed in. August 1997, four years after Fel-iz’s trial where the perjury occurred and well within the five-year limitations period. Thus, the indictment has a strong presumption of validity. An indictment brought within the time constraints of the statute may nevertheless violate due process where pre-in-dictment 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.” Marion, 404 U.S. at 324, 92 S.Ct. 455. As the Supreme Court further has explained, where delay prejudices the presentation of a defense and is engaged in for an improper purpose it violates the Due Process Clause because such conduct departs from fundamental notions of “fair play.” United States v. Lovasco, 431 U.S. 783, 795, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). A defendant bears the “heavy burden” of proving both that he suffered actual prejudice because of the alleged pre-indictment delay and that such delay was a course intentionally pursued by the government for an improper purpose. See United States v. Scarpa, 913 F.2d 993, 1014 (2d Cir.1990); United States v. Hoo, 825 F.2d 667, 671 (2d" }, { "docid": "11776193", "title": "", "text": "pending. The district court held that to the extent the government decided to await the outcome of Bartlett’s habeas action against the state before seeking a new indictment, “the delay [became] an intentional device to gain tactical advantage over the accused.” United States v. Bartlett, No. CR 84-30018-01, slip op. at 6 (D.S.D. Mar. 15, 1985) (quoting United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971)). The district court found actual prejudice to Bartlett in his continued incarceration on void state charges, and in the death and disappearance of several witnesses who might have provided exculpatory evidence. Id. at 7-8. The government argues on appeal that the district court misapplied the standards of United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), and United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), in granting Bartlett’s motion. Statutes of limitation provide the primary guarantee against prosecution of a defendant on overly stale charges. United States v. Lovasco, 431 U.S. at 789, 97 S.Ct. at 2048; United States v. Marion, 404 U.S. at 322, 92 S.Ct. at 464. Legislatures define in these statutes the appropriate balance between the governmental interest in just and effective prosecution and the defendant’s interest in being protected from having to defend against charges based on events long since obscured by the passage of time. See Marion, 404 U.S. at 322-23, 92 S.Ct. at 464; United States v. Otto, 742 F.2d 104, 107 (3d Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 978, 83 L.Ed.2d 980 (1985). The Supreme Court has acknowledged, however, that the due process clause has a “limited role to play in protecting against oppressive delay.” Lovasco, 431 U.S. at 789, 97 S.Ct. at 1048. Pre-indictment delay will be sufficiently “oppressive” to warrant dismissal of an indictment where the delay was unreasonable and substantially prejudicial to the defendant in the presentation of his case. Id. at 790, 97 S.Ct. at 2048; Marion, 404 U.S. at 324, 92 S.Ct. at 465. Proof of actual prejudice resulting from the delay" }, { "docid": "15131506", "title": "", "text": "Thus, the indictment has a strong presumption of validity. An indictment brought within the time constraints of the statute may nevertheless violate due process where pre-in-dictment 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.” Marion, 404 U.S. at 324, 92 S.Ct. 455. As the Supreme Court further has explained, where delay prejudices the presentation of a defense and is engaged in for an improper purpose it violates the Due Process Clause because such conduct departs from fundamental notions of “fair play.” United States v. Lovasco, 431 U.S. 783, 795, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). A defendant bears the “heavy burden” of proving both that he suffered actual prejudice because of the alleged pre-indictment delay and that such delay was a course intentionally pursued by the government for an improper purpose. See United States v. Scarpa, 913 F.2d 993, 1014 (2d Cir.1990); United States v. Hoo, 825 F.2d 667, 671 (2d Cir.1987). Prejudice in this context has meant that sort of deprivation that impairs a defendant’s right to a fair trial. See United States v. Elsbery, 602 F.2d 1054, 1059 (2d Cir.1979). This kind of prejudice is commonly demonstrated by the loss of documentary evidence or the unavailability of a key witness. See, e.g., Lovasco, 431 U.S. at 796, 97 S.Ct. 2044 (accepting defendant’s claim of prejudice based on loss of testimony of two material witnesses but finding no due process violation because delay was not improper); Marion, 404 U.S. at 325-26, 92 S.Ct. 455 (rejecting due process claims as speculative and premature, but commenting that “actual prejudice” may be shown if “memories ... dim, witnesses become inaccessible, and evidence [is] lost”). Feliz invites us to consider a new form of proof of prejudice sufficient to show a violation of due process: prejudice due to the extraordinary harm he maintains he will suffer if he is reincarcerated, given that he has fully rehabilitated himself and greatly invested in the community. B. Rehabilitation We have not had" }, { "docid": "16661455", "title": "", "text": "accused.” United States v. Rogers, 118 F.3d 466, 474-75 (6th Cir.1997) (quoting Marion, 404 U.S. at 324, 92 S.Ct. 455) (internal quotation marks omitted); see United States v. Schaffer, 586 F.3d 414, 425 (6th Cir.2009) (“[I]n order to establish a due process violation, the defendant must show that the delay ‘caused him actual prejudice in presenting his defense.’ ” (quoting United States v. Gouveia, 467 U.S. 180, 192, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984))). Because violations of the Due Process Clause may occur even within the limitations period, we address de novo the two elements of the constitutional test: actual prejudice and tactical intent. A. Absence of Prejudice “The standard for pre-indictment delay is nearly insurmountable, especially because proof of actual prejudice is always speculative.” Rogers, 118 F.3d at 477 n. 10 (citing United States v. Mays, 549 F.2d 670, 682 (9th Cir.1977) (Ely, J., dissenting)). Vaughn contends that he suffered actual prejudice in three ways, each separately analyzed below. 1. Missing Witness Vaughn posits that the pre-indictment delay prevented him from tracking down J.T. as an eyewitness for his trial. His theory goes: because the police knew J.T.’s phone number at the time of the transaction, and Officer Sexton knew where to drop off J.T. after the transaction, Vaughn could have found J.T. had he been indicted earlier. Vaughn speculates that, if found, J.T. might have presented exculpatory identification testimony to support Vaughn’s account that J.T., Burrow, and Officer Sexton dealt not with Vaughn but with another man, Brinkley. Even assuming that the delay prevented Vaughn from locating J.T., Vaughn cannot show that J.T.’s absence from trial actually or substantially prejudiced him. Vaughn can only speculate as to whether J.T.’s testimony would support his account of the facts as opposed to the government’s. No evidence suggests that J.T. would have identified someone other than Vaughn as the drug dealer. See Rogers, 118 F.3d at 475-76 (affirming district court’s conclusion of no actual substantial prejudice where missing -witness’s testimony “unlikely ... [to] have affected the outcome of the trial,” after evaluating several cases where courts deemed testimony indefinite or" } ]

[ { "docid": "22646676", "title": "", "text": "chips matching the samples that had been taken from the window. This evidence and his clothing were received at trial over Edwards’ objection that neither the clothing nor the results of its examination were admissible because the warrantless seizure of his clothing was invalid under the Fourth Amendment. The Court of Appeals reversed. Expressly disagreeing with two other Courts of Appeals, it held that although the arrest was lawful and probable cause existed to believe that paint chips would be discovered on respondent’s clothing, the warrantless seizure of the clothing carried out “after the administrative process and the mechanics of the arrest have come to a halt” was nevertheless unconstitutional under the Fourth Amendment. 474 F. 2d 1206, 1211 (CA6 1973). We granted certiorari, 414 U. S. 818, and now conclude that the Fourth Amendment should not be extended to invalidate the search and seizure in the circumstances of this case. The prevailing rule under the Fourth Amendment that searches and seizures may not be made without a warrant is subject to various exceptions. One of them permits warrantless searches incident to custodial arrests, United States v. Robinson, 414 U. S. 218 (1973); Chimel v. California, 395 U. S. 752, 755 (1969); Weeks v. United States, 232 U. S. 383, 392 (1914), and has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained. United States v. Robinson, supra. It is also plain that searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention. If need be, Abel v. United States, 362 U. S. 217 (1960), settled this question. There the defendant was arrested at his hotel, but the belongings taken with him to the place of detention were searched there. In sustaining the search, the Court noted that a valid search of the property could have been made at the place of arrest and perceived little difference “when the accused decides to" } ]

[ { "docid": "12224938", "title": "", "text": "consider them as used to carry it on. It follows that the ledger and bills were lawfully seized as an incident to the arrest.” Even without an arrest, warrantless seizures are proper in some tightly-drawn circumstances. For example, “hot pursuit” of a suspect may authorize officers to search a dwelling for the suspect and contemporaneously to seek and seize the fruits and means of committing the crime, weapons, and even “mere evidence” of the identification of the suspect. Warden Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642,18 L.Ed.2d 782 (1967). An officer should not be more restricted in a search which he has instituted pursuant to a search warrant than in one lawfully undertaken without a search warrant. Otherwise, the preference to be given to the warrant procedure would be sabotaged. United States v. Robinson, 287 F.Supp. 245 (U.S.D.C.N.D.Ind.1968). Relying upon Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), which permitted seizure of property related to a different crime from that for which a lawful search had been undertaken without a search warrant, the courts deciding Aron v. United States, 382 F.2d 965 (C.A. 8th Cir. 1967) and United States v. Eisner, 297 F.2d 595 (C.A. 6th Cir. 1962) have held that, even where no arrest has been or is being made, officers searching under a valid search warrant may seize property not described in the warrant and relating to a different offense, where possession of that property constitutes a crime. The possession, said the courts, meant that the possessor was committing an offense in the presence of the officers. Aron and Eisner, then, take one step beyond Marrón. Whereas Marrón says that officers are authorized to arrest for a crime being committed in their presence and to seize evidence of that criminal enterprise, Aron and Eisner say that officers may seize evidence of a crime being committed in their presence without a contemporaneous arrest, where the entry was proper because of a search warrant related to a different offense. This conclusion appears to be justified by Harris. It is sensible that," }, { "docid": "4483070", "title": "", "text": "to have a seat in the back seat of the patrol car. It is in dispute whether defendant Kemper was ever formally arrested at this time, but it is clear that he was to some extent in a custodial situation. The officers found Mrs. Johnson in a distressed state and reported that she stated “he is going to kill me.” She informed the officers that Kemper had a gun in the trunk of the car. They then contacted the state police by radio and verified the description of the car and the name of the female passenger. The keys to the trunk were obtained by one of the officers from the ignition, the trunk was searched, and a pistol was found. The officers had no search warrant. Kemper, at the request of one of the officers, and accompanied by him, drove his car to Berea. He was later charged with the offenses set forth in the indictment. Apparently the Johnson woman was driven to Berea by the other officer in the patrol ear. While it is accepted that warrantless searches of automobiles may be valid in situations where the same search of a dwelling without a warrant would be unconstitutional, the precise parameters of the “automobile exception” are not clearly defined. The more lenient rule for automobiles was first stated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). There the Court interpreted the fourth amendment to permit warrantless searches of moveable vehicles where officers had reason to believe that they contained contraband which might be lost before a warrant could be obtained. While it could initially have been said that Carroll is applicable to the search for and seizure of contraband only, the demise of the “mere evidence” rule in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), would suggest that the distinction between contraband and instrumentalities, on the one hand, and mere evidence on the other, would no longer be a valid limitation on the automobile exception. In Warden, police in “hot pursuit” of a suspected robber" }, { "docid": "58331", "title": "", "text": "include search of the object itself. See Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993) (“If ... the police lack probable cause to believe that an object in plain view is contraband without conducting sóme further search of the object ... the plain-view doctrine cannot justify its seizure.”). But any subsequent legitimate steps in .the search process are as effective as prior steps in supplying the requisite knowledge. RANDOLPH, Circuit Judge, concurring: It should have been simple enough to explain why the officers’ seizure of the ear key complied with the Fourth Amendment. Sophia Garces’ consent to the search of her car carried with it her consent to using the key to open the ear door. See Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991). The officers had already lawfully discovered the key in the defendant’s clothing during the search authorized by the warrant. When the officers opened the car with the key, they found a gun. Upon completing their search of the ear, they relocked the door, had the ear towed to an FBI lot, and seized the key. It does not take any intricate analysis to conclude that in addition to towing the car away, the officers could take the key as well. They could lawfully seize both items for the same reason: the car and the key were plainly evidence of defendant’s criminal activity. Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782 (1967), is directly on point. As the Court put it in Soldal v. Cook County, 506 U.S. 56, 65-66, 113 S.Ct. 538, 545-46, 121 L.Ed.2d 450 (1992), a plain view seizure is valid so long as the probable cause standard is met — it was here — and so long as the seizure is “unac companied by unlawful trespass” — which it was in view of Sophia Garces’ consent to the search. Other decisions sustaining seizures of the sort we have in this case are cited in 3 Wayne R. LaFave, Search and Seizure §" }, { "docid": "23556617", "title": "", "text": "the cases cited by the government in support of its reconceptualization of the plain view seizure' doctrine are to the contrary. See United States v. Jackson, 381 F.3d 984 (10th Cir.2004) (after officer searched baby powder container with defendant’s consent and discovered cocaine secreted inside, officer could replace lid to container, arrest defendant, and then reopen the container at the police station without obtaining a warrant); United States v. Eschweiler, 745 F.2d 435, 439 (7th Cir.1984) (during search of premises, key to safety deposit box discovered in an envelope marked \"safety deposit box”); United States v. Morgan, 744 F.2d 1215, 1222 (6th Cir.1984) (after airline employee opened suspicious package and discovered container marked with names of controlled substances used to dilute illegal narcotics, and then without a request by drug agents, reopened suitcase when drug agents arrived, chemicals were in \"plain view” of agents and marked containers could be opened without a warrant). . Of course, I do not seek a return to the “mere evidence” doctrine discarded by the Supreme Court in Warden v. Hayden, 387 U.S. 294, 301-02, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Rather, the point here is that my search of Supreme Court and circuit authority, as I discuss in the text, does not reveal an instance in which a law enforcement officer has been authorized to seize a closed, opaque container containing non-contraband personalty from the possession of a person on the basis of the plain view exception. In such circumstances, even assuming a seizure is allowed, absent some applicable warrant exception, if the ensuing search of the container was without a warrant, the search violates the Fourth Amendment. Ample Supreme Court authority supports this view. See supra pp. 263-66. . In contrast, one never has a reasonable expectation of privacy in regard to his possession of contraband. See United States v. Moore, 562 F.2d 106, 111 (1st Cir.1977) (observing that \"the possessors of [contraband and stolen property] have no legitimate expectation of -privacy in substances which they have no right to possess at all”), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55" }, { "docid": "13050501", "title": "", "text": "United States, and the DEA agents seized the documents incident to the arrest. Judge Kennedy explained the court’s reasoning: [T]here is no dispute that the search was conducted at an international border by customs officers legally entitled to search persons entering the United States. That the search was made at the request of the DEA officers does not detract from its legitimacy. Suspicion of customs officials is alone sufficient justification for a border search. The source of that suspicion is irrelevant in sustaining the search. Moreover, the border search was legitimate in scope. We recognize that the primary purpose of a border search is to seize contraband property unlawfully imported or brought into the United States. However, where customs officers are authorized to search for material subject to duty or otherwise introduced illegally into the United States and they discover the instrumentalities or evidence of crimes, they may seize the same. Id. (citations omitted). The decisions in the other circuits are to the same effect. See United States v. Boumelhem, 339 F.3d 414, 423 (6th Cir.2003); People v. Villacrusis, 992 F.2d 886, 887 (9th Cir.1993); United States v. Carter, 592 F.2d 402, 406 (7th Cir.1979); United States v. Bates, 526 F.2d 966, 967 (5th Cir.1976). Gurr thus misstates the law in arguing that no case suggests that Customs officials may seize something that they do not know to be contraband. The distinction that Gurr would draw between contraband and documentary evidence of a crime is without legal basis. Cf. Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 301, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Following Gurr’s reasoning, and contrary to Schoor, 597 F.2d at 1306, Customs officials could not lawfully seize records of a drug operation during a border search even if Customs had been informed by the DEA that an arrested co-conspirator had implicated the passenger. The Supreme Court has suggested in analogous circumstances that the important factor for a court to consider is whether the search was conducted under proper authority, not the “underlying intent or motivation of the officers involved.” Scott v. United States, 436 U.S." }, { "docid": "7766727", "title": "", "text": "Ford automobile had been rented there and never returned. Taylor agreed to go and the girl in charge identified him as accompanying the man who rented the Ford under the name of John T. Demoss. The officers took Taylor back to the Motel where he was arrested under the State warrant. Kucinich and Taylor were then taken to the Blount County jail in separate patrol cars. The officers then opened the Mercury trunk with the key they had obtained from Kucinich and found the stolen luggage. This luggage and other evidence which will be discussed later were turned over to the United States Attorney for the Eastern District of Tennessee. We deal first with Appellants’ claim raised throughout the trial on motions to suppress under Rule 41(e), Federal Rules of Criminal Procedure, that the luggage taken from the Mercury was fruit of an unreasonable search. Appellants contend that the agents did not have sufficient probable cause to arrest Kucinich, therefore, the consequential search was invalid. Or, if the arrest was valid, the search was so remote in time that a warrant was required. The rule that a valid arrest justifies a limited warrantless search is well settled but its application has caused the courts considerable difficulty. A limited search may be made by officers when necessary to protect themselves, to deprive prisoners of means of escape and to avoid the destruction of evidence. See United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. The officers may properly seize means by which the crime was committed, its fruits, contraband, and more recently, mere evidence. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1966). This seizure is allowed only if the search was incidental to a valid arrest. As an exception to the Fourth Amendment command against arbitrary invasions of privacy, the necessity that justifies a warrantless search has been and must be narrowly construed. See, e. g., Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409 (1925). We hold that sufficient probable cause existed for Kucinich’s" }, { "docid": "16807258", "title": "", "text": "When Birch then found the marijuana cigarette, he had probable cause to arrest defendant for possession of marijuana. See United States v. Watson, 423 U.S. 411, 418, 96 S.Ct. 820, 825, 46 L.Ed.2d 598 (1976) (commission of crime in presence of officer is sufficient cause to support warrantless arrest). We consequently find no constitutional error in either the initial stop or the arrest of defendant. 2. Defendant next contends that the subsequent search of the vehicle was unjustified. We disagree. A police officer may search the passenger compartment of an automobile incident to the lawful custodial arrest of the occupant of the vehicle without a warrant or probable cause. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981). This is so even if the arrestee has been separated from his car prior to the search of the passenger compartment. United States v. White, 871 F.2d 41, 44 (6th Cir.1989). Further, where police have probable cause to believe that a vehicle contains contraband, they may search the entire vehicle and any containers located within it. California v. Acevedo, — U.S. -, -, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619 (1991). In the instant case, defendant was lawfully arrested. Incident to that arrest the officers could search the interior of his car without a warrant or probable cause; thus, the cash found under the front seat was admissible. The marijuana cigarette coupled with the large sum of cash provided the officers with probable cause to believe that the car contained other drugs or drug paraphernalia. Their belief was only strengthened when they discovered defendant hiding packages of cocaine under the backseat of the police cruiser. Thus, the search of the trunk was supported by probable cause, and the scales and cellophane were also admissible. B. Defendant also challenges his sentence, arguing that the government did not file an information giving defendant notice of what prior convictions would be used to enhance his sentence as required under the Controlled Substances Act, 21 U.S.C. § 851(a)(1). It is true that no such information was filed, but the" }, { "docid": "12003684", "title": "", "text": "Murphy, 351 F.2d 610 (2 Cir. 1965). Relator, however, argues that even though probable cause to arrest may have existed, no arrest in fact was made until after he had been searched and after LaFord had identified him and his codefendant as the two men who had taken his money. Consequently, relator asserts that this search was not a search incident to a lawful arrest because it preceded the arrest and formed part of the justification for the arrest. We do not agree. The lack of formal announcement of arrest presents no constitutional infirmity under these circumstances where Officer Johnson, who was in “hot pursuit” of the two men who had just committed a felony, apprehended relator and his co-defendant. See Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 310-313, 87 S.Ct. 1642, 18 L.Ed.2d 782 (Fortas, J., concurring) (1967); compare Sibron v. New York, supra. In the instant case the arrest, for purposes of constitutional justification, occurred at the moment Officer Johnson ordered relator out of the truck at gunpoint. Sibron v. New York, supra; see Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305, 307-309 (1967); cf. Buick v. United States, 396 F.2d 912, 915 (9 Cir. 1968). Having validly arrested relator, Officer Johnson was entitled to make the limited, contemporaneous search for weapons and fruits of the crime that he made. Sibron v. New York, supra; Preston v. United States, supra; Agnel-lo v. United States, supra 269 U.S. at 30, 46 S.Ct. 4. Therefore, the one hundred dollars in a small roll and the four one dollar bills taken from relator’s pockets by Officer Johnson were admissible at trial since they were obtained in the course of a constitutionally valid search of relator’s person. When the prosecution sought to introduce into evidence the money Officer Johnson found in relator’s possession, the following colloquy took place between the court and defense counsel: The Court: * * * This witness says that this is the money he took out of the pocket of the defendant. He does not say that this is the money that the complainant said" }, { "docid": "17444135", "title": "", "text": "Finally, Robinson contends that the officers illegally searched the maroon Ford Explorer in which he had arrived at the mail facility. This challenge rests in part upon the claim, which we have already rejected, that this search was the product of an unlawful search and/or seizure of the package. Robinson further contends that he was at least 30 feet away from the vehicle at the time of his arrest, so that there was no threat that he might retrieve a weapon from the car. We have upheld the search of an automobile incident to an arrest, however, even when the arrestee was out of the car, handcuffed, and placed in the back seat of a police cruiser. See United States v. White, 871 F.2d 41, 43-44 (6th Cir.1989). In any event, the record indicates that an inventory search would have been conducted in accordance with written police policy, so that the contents of the vehicle would be admissible under the doctrine of inevitable discovery. See United States v. Kimes, 246 F.3d 800, 804 (6th Cir.2001). We find no error, therefore, in the district court’s denial of Robinson’s motion to suppress the evidence obtained during the May 19, 2000 controlled delivery. 2. The June 15, 2000 Search and Seizure of a UPS Package Defendant Robinson mounts a single and rather cursory challenge to the June 15, 2000 search and seizure of a package at a UPS facility in Knoxville, Tennessee. Specifically, he contends, without citation to any authority, that this package could not be opened or seized without a warrant, notwithstanding the fact that the package was opened by a UPS employee and not a law enforcement officer. This argument, however, runs counter to the evidentiary record and the controlling precedents. “[T]he Fourth Amendment proscribes only governmental action and does not apply to a search or seizure, even an unreasonable one, conducted by a private individual not acting as an agent of the government.” United States v. Lambert, 771 F.2d 83, 89 (6th Cir.1985). Moreover, “[a] person will not be acting as a police agent merely because there was some antecedent" }, { "docid": "5511211", "title": "", "text": "not password-protected. Third, it does not claim that this was an inventory search. See Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). . It is not clear from the record how much time passed between Wurie’s arrest and the search of his cell phone at the station house. Nonetheless, because Wurie has not raised the argument, we need not decide whether the government is correct that, under Edwards, the search here was “incident to” Wurie’s arrest, despite the delay. See 415 U.S. at 803, 94 S.Ct. 1234 (\"[S]earches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.”). . The government has also suggested a more limited way for us to resolve this case: by holding that this particular search was lawful under United States v. Sheehan, 583 F.2d 30 (1st Cir.1978). But Sheehan was a seizure case, not a search case, and \"[i]t is extremely important to distinguish a search of the person from a seizure of objects found in that search.” 3 Wayne R. LaFave, Search & Seizure § 5.2(j), at 185 (5th ed. 2012). The defendant in Sheehan conceded that \"the search of his wallet was legal”; he challenged only the seizure of a list of names and telephone numbers in the wallet. 583 F.2d at 31. Because the list was not \"a fruit, instrumentality, or contraband, probative of a crime,” but rather “mere evidence,” we analyzed whether probable cause existed to support the seizure. Id. (citing Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)). The lawfulness of a search of the person incident to arrest, however, does not turn on the likelihood that evidence of the crime of arrest will be discovered. See Robinson, 414 U.S. at 234, 94 S.Ct. 467. The Supreme Court did' articulate such a rule in Gant but limited it to the vehicle context. 556 U.S. at 343, 429 S.Ct. 1710. . See, e.g., United States v. Ortiz, 84 F.3d 977, 984 (7th Cir." }, { "docid": "381921", "title": "", "text": "Chimel was that the reasonableness test had permitted searches beyond the arrested person himself and the area within his immediate control. Even under the Chimel rationale, however, “a search of the person of an arrestee and of the area under his immediate control could be carried out without a warrant. [The Court] did not indicate there that the police must obtain a warrant if they anticipate that they will find specific evidence during the course of the search.” Coolidge v. New Hampshire, 403 U.S. 443, 482, 91 S.Ct. 2022, 2046, 29 L.Ed.2d 564 (1971). In the present case the search did not extend beyond the person of the Appellant. The clothing seized and searched certainly was within his immediate control and probable cause existed to believe that paint chips would be found on the clothing. The Supreme Court has rejected the distinction between mere evidence and instrumentalities, fruits of crime or contraband found during a lawful search, as long as there is a nexus “between the item to be seized and criminal behavior. Thus in the case of ‘mere evidence,’ probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.” Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782 (1967). In this case, there was cause for such a belief. Appellant’s clothing could, therefore, properly have been the subject of a search incident to a lawful arrest. because it was within the limited area defined in Chimel v. California, supra. The question remains, however, as to whether the seizure was substantially contemporaneous with and confined to the immediate vicinity of the arrest. The removal of Appellant’s clothing did not occur until some ten hours after his arrest. In Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), the Supreme Court said: “Once an accused is under arrest and in custody, than a search made at another place, without a warrant, is simply not incident to the arrest.” 376 U.S. at 367, 84 S.Ct. at 883. While Preston" }, { "docid": "307869", "title": "", "text": "on which Wade was also entitled to rely in effecting the seizure. Supreme Court precedent permits officers to seize contraband in plain view so long as its incriminating character is “immediately apparent” and the officers are “lawfully located in a place from which the object can be plainly seen....” Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (internal quotation marks omitted). Thus, officers executing a valid warrant to search for stolen jewelry may also seize weapons they discover if the incriminating nature of the weapons is readily apparent. Id. at 142, 110 S.Ct. 2301; see also Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (holding that police may seize evidence they observe while inside a house in hot pursuit of a suspect). Wade was lawfully on the Trents’ property when he observed the ATV, which had just been used as an instrumentality in the crime of evading arrest. Under these circumstances, Wade did not violate clearly established law by effecting a seizure of the automobile. Cf. United States v. Sanchez, 612 F.3d 1, 5 (1st Cir.2010) (relying on the plain-view doctrine to uphold a warrantless seizure of an unlicensed motorcycle from “a parking lot where [officers] had a right to be, and both the motorcycle and its license plate were easily visible to the naked eye.”). The district court denied qualified immunity because Wade had not shown that “any public caretaking concern is served by impounding an ATV parked outside of a private residence.” As a result, the district court opined that fact issues precluded a finding that the seizure was reasonable. We might agree that no public caretaking concern was served by seizing the vehicle, but public caretaking is just one ground upon which officers may seize a vehicle. As the above discussion makes clear, vehicles also may be seized if they are contraband subject to forfeiture under state law or if they are contraband in plain view of an officer. See Sanchez, 612 F.3d at 3-4 (upholding seizure under plain-view doctrine instead of addressing parties’ arguments about" }, { "docid": "9752476", "title": "", "text": "to pose at least some unpredictable, albeit slight, risk to the security of the officers or the evidence {e.g., arrestee handcuffed in back of guarded police cruiser), we do not understand him to chal-Ienge the great weight of authority which holds that Beltons bright-line rule applies even in cases where the arrestee is under physical restraint and at some distance from the automobile during the search. See, e.g., United States v. Jackson, 918 F.2d 236, 240 (1st Cir.1990) (arres-tee handcuffed in police cruiser); United States v. White, 871 F.2d 41, 43 (6th Cir.1989) (in police cruiser); United States v. Karlin, 852 F.2d 968, 970-71 (7th Cir.1988) (handcuffed in police cruiser), cert. denied, 489 U.S. 1021, 109 S.Ct. 1142, 103 L.Ed.2d 202 (1989); United States v. Cotton, 751 F.2d 1146, 1148 (10th Cir.1985) (handcuffed); United States v. Collins, 668 F.2d 819, 821 (5th Cir.1982) (same); see also Traylor v. State, 458 A.2d 1170, 1174 (Del.1983) (outside car, handcuffed); State v. Wheaton, 121 Idaho 404, 825 P.2d 501, 502-03 (1992) (handcuffed in police cruiser); State v. Miskolczi, 123 N.H. 626, 465 A.2d 919, 920-21 (1983) (same); State v. Hensel, 417 N.W.2d 849, 852-53 (N.D.1988) (same); State v. Fladebo, 113 Wash.2d 388, 779 P.2d 707, 711-12 (1989) (in cruiser); cf. United States v. Vasey, 834 F.2d 782, 787 (9th Cir.1987) (citing United States v. Abel, 707 F.2d 1013, 1015 n. 3 (9th Cir.1983)). . The Belton bright-line rule likewise extends to any container within the passenger compartment even though its outward appearance might foreclose the possibility that it could hold a weapon or evidence: \"The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.\" Belton," }, { "docid": "6015219", "title": "", "text": "at all unreasonable to consider that the Bond suit was a part of the felon’s planned paraphernalia and, therefore, was an instrumentality of the criminal enterprise. As we said in United States v. One 1965 Buick, 392 F.2d 672,(6th Cir. 1968): “It should be pointed out that officers in conducting a search are not in all instances limited to the seizure of objects detailed in the warrant. Johnson v. United States, [110 U.S.App.D. C. 351,] 293 F.2d 539, 540 (1961), cert, denied, 375 U.S. 888, [84 S.Ct. 167, 11 L.Ed.2d 118] (1963). An item may be so closely related to the items detailed as to justify their seizure, i.e., where the item though not itself listed in the warrant, is an instrumentality for commission of the crime involved.” iv) Relevance of Warden v. Hayden. We believe finally that the Supreme Court’s opinion in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), should be held dispositive of this case. The Court was there dealing with the admissibility of clothing of the accused, discovered and seized by the police in the accused’s home as part of the “hot pursuit” of a culprit who had been seen leaving a place just robbed and seen also entering his home at the end of his flight. No warrant had been yet issued, either for the arrest of the suspect or for the search of his home. Relying upon the rule that “mere evidence” may not be seized whether taken under a valid search without a warrant or pursuant to a search warrant, the 4th Circuit in Hayden v. Warden, 363 F.2d 647 (1966) had held that the clothing was not admissible. The Supreme Court opinion does away with the distinction between mere evidence, contraband, instrumentalities of the crime, etc., and holds that the clothing seized was admissible. The majority opinion there talked of the seizure of the clothes from a washing machine being possibly considered as part of a search for weapons and noted that the search and seizure were contemporaneous with an arrest. We consider these circumstances should not" }, { "docid": "9772129", "title": "", "text": "was sufficient standing alone. The magistrate properly concluded that there was probable cause for issuance of the arrest warrant. Simpson’s argument that the search of his wallet was unreasonable is without merit. The Fourth Amendment secures people, their persons, houses, papers and effects against unreasonable searches and seizures. When a search of the person arrested is conducted incidental to a lawful arrest it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). A search incidental to a valid arrest may have as one of its purposes the discovery of objects or things which constitutes evidence that the person arrested has committed a crime. Pinelli v. United States, 403 F.2d 998 (10th Cir. 1968); Malone v. Crouse, 380 F.2d 741 (10th Cir. 1967), cert, denied 390 U.S. 968, 88 S.Ct. 1082, 19 L.Ed.2d 1174 (1968); Stone v. United States, 385 F.2d 713 (10th Cir. 1967), cert, denied 391 U.S. 966, 88 S.Ct. 2038, 20 L.Ed.2d 880 (1968). “The probable cause that is required to sustain the search is the same whether the purpose of the search is to uncover weapons, mere evidence or any of the other categories of permissible objects.” Pinelli, supra, 403 F.2d at 1000-1001. See also Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Holt v. United States, 404 F.2d 914 (10th Cir. 1968), cert, denied 393 U.S. 1086, 89 S.Ct. 872, 21 L.Ed.2d 779 (1969). The law does not distinguish between documents and other items found on the person arrested. All of the seized items may be admitted in evidence if determined to have probative value in relation to the commission of crime. United States v. Kirschenblatt, 16 F.2d 202 (2nd Cir. 1926). “While we agree that strict consistency might give to" }, { "docid": "13050502", "title": "", "text": "Cir.2003); People v. Villacrusis, 992 F.2d 886, 887 (9th Cir.1993); United States v. Carter, 592 F.2d 402, 406 (7th Cir.1979); United States v. Bates, 526 F.2d 966, 967 (5th Cir.1976). Gurr thus misstates the law in arguing that no case suggests that Customs officials may seize something that they do not know to be contraband. The distinction that Gurr would draw between contraband and documentary evidence of a crime is without legal basis. Cf. Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 301, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Following Gurr’s reasoning, and contrary to Schoor, 597 F.2d at 1306, Customs officials could not lawfully seize records of a drug operation during a border search even if Customs had been informed by the DEA that an arrested co-conspirator had implicated the passenger. The Supreme Court has suggested in analogous circumstances that the important factor for a court to consider is whether the search was conducted under proper authority, not the “underlying intent or motivation of the officers involved.” Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978); see United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); see also Boumelhem, 339 F.3d at 423; Bates, 526 F.2d at 967; cf. United States v. Villamonte-Marquez, 462 U.S. 579, 584 n. 3, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983); 1 Wayne R. Lafave, Search And Seizure: A Treatise On The Fourth Amendment § 1.8(b), at 261-62 (4th ed.2004). Additionally, Gurr misstates the trial record in asserting that Customs officials “had no idea of the significance of the documents they were looking at” because the documents consisted only of “plain old account numbers with monetary amounts next to them.” Appellant’s Br. at 13. Customs officials testified that they knew that the charges pending against Gurr involved a fraud allegedly committed against a federal credit union in American Samoa. The two Customs officials conducting the luggage search had been personally involved in placing Gurr under arrest. U.S. Customs Special Agent Douglas S. Palmer testified that, as a result, their suspicions were" }, { "docid": "17444134", "title": "", "text": "however, runs directly afoul of Illinois v. Andreas, 463 U.S. 765, 773, 103 S.Ct. 3319, 3325, 77 L.Ed.2d 1003 (1983), in which the Supreme Court approved an analogous controlled delivery of narcotics, holding that “absent a substantial likelihood that the contents have been changed, there is no legitimate expectation of privacy in the contents of a container previously opened under lawful authority.” Once officers have lawfully opened a container and found contraband inside, “[t]he simple act of resealing the container to enable the police to make a controlled delivery does not operate to revive or restore the lawfully invaded privacy rights.” Andreas, 463 U.S. at 771, 103 S.Ct. at 3324. Robinson has not cited any authority for his contrary position. Nor has he identified any evidentiary basis for suspecting that the contents of the package might have been altered, where the officers testified that the package remained within their constructive possession at all times until Robinson claimed it, and where he was arrested immediately thereafter as he exited the Pak Mail facility with the package. Finally, Robinson contends that the officers illegally searched the maroon Ford Explorer in which he had arrived at the mail facility. This challenge rests in part upon the claim, which we have already rejected, that this search was the product of an unlawful search and/or seizure of the package. Robinson further contends that he was at least 30 feet away from the vehicle at the time of his arrest, so that there was no threat that he might retrieve a weapon from the car. We have upheld the search of an automobile incident to an arrest, however, even when the arrestee was out of the car, handcuffed, and placed in the back seat of a police cruiser. See United States v. White, 871 F.2d 41, 43-44 (6th Cir.1989). In any event, the record indicates that an inventory search would have been conducted in accordance with written police policy, so that the contents of the vehicle would be admissible under the doctrine of inevitable discovery. See United States v. Kimes, 246 F.3d 800, 804 (6th Cir.2001)." }, { "docid": "5511212", "title": "", "text": "the person from a seizure of objects found in that search.” 3 Wayne R. LaFave, Search & Seizure § 5.2(j), at 185 (5th ed. 2012). The defendant in Sheehan conceded that \"the search of his wallet was legal”; he challenged only the seizure of a list of names and telephone numbers in the wallet. 583 F.2d at 31. Because the list was not \"a fruit, instrumentality, or contraband, probative of a crime,” but rather “mere evidence,” we analyzed whether probable cause existed to support the seizure. Id. (citing Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)). The lawfulness of a search of the person incident to arrest, however, does not turn on the likelihood that evidence of the crime of arrest will be discovered. See Robinson, 414 U.S. at 234, 94 S.Ct. 467. The Supreme Court did' articulate such a rule in Gant but limited it to the vehicle context. 556 U.S. at 343, 429 S.Ct. 1710. . See, e.g., United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996) (pager); United States v. Uricoechea-Casallas, 946 F.2d 162, 166 (1st Cir.1991) (wallet); United States v. Holzman, 871 F.2d 1496, 1504-05 (9th Cir.1989) (address book), overruled on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); United States v. Burnette, 698 F.2d 1038, 1049 (9th Cir. 1983) (purse); United States v. Eatherton, 519 F.2d 603, 610-11 (1st Cir. 1975) (briefcase). . We are also cognizant of the fact that \"[m]o-bile devices increasingly store personal user data in the cloud instead of on the device itself,” which \"allows the data to be accessed from multiple devices and provides backups.” James E. Cabral et ah, Using Technology to Enhance Access to Justice, 26 Harv. J.L. & Tech. 241, 268 (2012). Though the government insisted at oral argument that it was not seeking a rule that would permit access to information stored in the cloud, we believe that it may soon be impossible for an officer to avoid accessing such information during the search of a cell phone or other electronic" }, { "docid": "22216807", "title": "", "text": "mere sham and that the evidence thus discovered could not be received: “the police engaged in a deliberate scheme to evade the requirements of the Fourth Amendment by using a traffic arrest * * * to search appellant for narcotics they suspected he had on his person.” 291 F.2d at 267. A search incident to an arrest must have as one or more of \"its purposes the discovery of (1) the fruits of the crime; (2) instrumentalities used to commit the crime; (3) weapons or like material which put the arresting officer in danger or might facilitate escape; (4) contraband, the possession of which is a crime (Preston v. United States, 1964, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777; Agnello v. United States, 1925, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145), and, by a recent decision, (5) material which constitutes evidence of the crime or evidence that the person arrested has committed it (Warden v. Hayden, 1967, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782). Purposes 4 and 5 have no application here, because they require probable cause as a predicate for the search. There are of course no “fruits” of the sort of traffic offenses Gonzalez may have committed. The only instrumentality is the car itself. The officers appeared to be in no danger: The defendant was outside of his car at the time of the search and virtually surrounded by three police officers. Indeed, Avalos even acknowledged that he was in fact looking for narcotics. On the record before us, the evidence clearly demonstrates that the arrest of Gonzalez was a pretext to enable the arresting officers to search Gonzalez and his car. My brothers agree that the search was therefore unreasonable. B. I would go further. I would hold that, pretext or no pretext, a lawful arrest of an automobile driver for a traffic offense provides no lawful predicate for the search of the driver or his ear-absent special circumstances. My brothers, however, who concur in the result, say, “Legality of a search conducted after a traffic arrest which" }, { "docid": "12634545", "title": "", "text": "be a potential instrument of the crime of burglary.” 392 U.S. at 67, 88 S.Ct. at 1905. The need to seize weapons and the potential instruments of crime, thus indicated as relevant to the scope of a search, does not limit its admissible fruit to weapons if conducted consistently with a proper search for weapons. Appellant did not contend in the District Court that the scope of the search exceeded what was permissible in a search for a weapon; and there is nothing in the record to indicate ex-cessiveness in this respect. Since the search was for a weapon the seizure of the narcotics, though not a weapon, was lawful and this contraband accordingly was usable as evidence. If in Peters the search had disclosed narcotics in Peters’ pocket, instead of burglary tools, the narcotics could have been used as evidence had Peters been charged with violating the narcotics laws. Or if the search in Sibron had been reasonable, the heroin which it yielded would have been admissible. Indeed, in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, the Court throughout the opinion places in the same category of admissible evidence seized in a search incident to a lawful arrest, “instrumentality, fruit, or contraband.” And see the concurring opinion of Mr. Justice Fortas, with whom the Chief Justice joined: “The seizure of contraband has been justified on the ground that the suspect has not even a bare possessory right to contraband. See, e.g., Boyd v. United States, 116 U.S. 616, 623-624, 6 S.Ct. 524, 528-529, 29 L.Ed. 746 (1886); United States v. Kirschenblatt, 16 F.2d 202, 203, 51 A.L.R. 416 (C.A.2d Cir. 1926) (L. Hand, J.).” 387 U.S. at 311, 87 S.Ct. at 1652. This position apparently was approved, though the right to seize does not necessarily solve the problem of admissibility. Sibron v. State of New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, decided the same day as Terry and Peters, is not contrary to our position. Not only was the arrest there unlawful due to lack of probable cause" } ]

[ { "docid": "5602674", "title": "", "text": "during opening argument that Peckham was not directing Serafino in the alleged money-making enterprise, and (ii) an admission by Peckham that the monies Gentile ultimately disbursed to Peckham and Serafino were equal in amount. Ser-afino insists that these statements were fatally antagonistic to his anticipated defense: viz., that he was an unwitting dupe who blindly carried out orders in the fraudulent scheme devised by Peckham. We discern no plain abuse of discretion. See United States v. Sotomayor-Vazquez, 249 F.3d 1, 16-17 (1st Cir.2001) (prescribing “plain abuse of discretion” standard of review and noting “strong preference in the federal system for jointly trying defendants involved in related crimes, ... unless ‘there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants or prevent the jury from making a reliable judgment about guilt or innocence’ ”) (citation omitted). Even assuming, arguendo, that Serafino and Peckham presented somewhat antagonistic defenses, Serafino would have had to demonstrate that the “defenses [were] so irreconcilable as to involve fundamental disagreement over core and basic facts,” United States v. Peña-Lora, 225 F.3d 17, 34 (1st Cir.2000) (citation omitted; emphasis added), cert. denied, 531 U.S. 1114, 121 S.Ct. 860, 148 L.Ed.2d 774 (2001), such that “the jury unjustifiably [would] infer that this conflict alone demonstrate^] that both [defendants] [were] guilty,” United States v. Talavera, 668 F.2d 625, 630 (1st Cir.1982) (emphasis added). A thorough record review has disclosed no such irreconcilability. Serafino never disputed that the MBC vendors funneled payments through his companies’ accounts, and Peckham’s contention that he was neither the mastermind nor the driving force behind the scheme did not necessarily require that the jury either accept or reject the defense that Serafino was an unwitting participant. B. The Testimony of Agent Kavrakis Next, Serafino insists that the district court abused its discretion by admitting in evidence the trial testimony offered by IRS Agent Harry Kavrakis. Serafino asserts that the government failed to provide adequate advance notice of the nature of the Kavrakis testimony, which focused on the financial benefits Serafino realized from the kickback scheme and" } ]

[ { "docid": "19735110", "title": "", "text": "ignored. Such a context is presented here, where the powerfully incriminating statements of a codefendant, who stands accused side-by-side with the are deliberately spread before the jury in a joint trial.” (citations omitted)). This is the argument that Tejeda makes&emdash; that the incident was so strongly and harmful that no instruction and no voir dire could cure it. Tejeda adds that the jurors’ voir dire responses demonstrated that they would not be able to the gesture in reaching a decision in the case. We disagree for the reasons stated above. The district court did not abuse its in its handling of the throat-slitting gesture. Rather, it responded sensitively and correctly. B. Severance and Bifurcation Appellate review of trial court decisions to sever trials of criminal is for manifest abuse of United States v. DeLeon, 187 F.3d 60, 63 (1st Cir.1999); Boylan, 898 F.2d at 246. Ordinarily, criminal co-defendants are to be tried together. United States v. Houle, 237 F.3d 71, 75-76 (1st Cir.2001). This rule has particular resonance in drug conspiracy cases, where multiple defendants often share a single indictment. See United States v. Soto-Beniquez, 356 F.3d 1, 29 (1st Cir.2003). Tejeda bears the burden of making “a strong showing of prejudice” in order to gain a new trial. Boylan, 898 F.2d at 246 (quoting United States v. Porter, 764 F.2d 1, 12 (1st Cir.1985)) (internal quotation marks omitted). Tejeda twice moved to sever his trial from that of his co-defendants. He did so as to all co-defendants by motion before trial. Later, on the first day of trial, he orally moved to sever his trial from that of co-defendant Figueroa, after he learned that Figueroa would testify and present a battered woman defense as to her relationship with Mendes. Her testimony would be that Mendes regularly beat her. Her proffer indicated that she would not implicate Tejeda in the abuse she suffered. On appeal, the only issue has to do with the motions to sever the case against Figueroa. Tejeda’s severance motion argued that it was likely that Figueroa would take the stand and admit her involvement in the" }, { "docid": "1335035", "title": "", "text": "trial if joinder “appears to prejudice” him. This intersection has been extensively mapped. The general rule is that defendants who are properly joined in an indictment should be tried together. See United States v. O’Bryant, 998 F.2d 21, 25 (1st Cir.1993). This rule has special force in conspiracy cases, in which the severance of coconspirators’ trials “will rarely, if ever, be required.” United States v. Flores-Rivera, 56 F.3d 319, 325 (1st Cir.1995) (internal quotation marks omitted). Because considerable deference is due to the trial court’s superior coign of vantage, we review that court’s ruling granting or denying a motion to sever for abuse of discretion. See United States v. Boylan, 898 F.2d 230, 246 (1st Cir.1990). The defendants’ claim of error has two subsets. They start with the plaint that Adams’s defense was both antagonistic to and irreconcilable with their defenses. We do not agree. The defendants and Adams were charged as participants in the payroll tax conspiracy. Unlike the defendants, Adams — who was also charged with three counts of tax evasion — decided to confess and avoid; that is, he admitted that he intentionally committed and facilitated the proscribed acts, but contended that his good-faith belief that he had no legal obligation to pay income taxes forestalled any finding of guilt. See Cheek v. United States, 498 U.S. 192, 203, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). The defendants took a different tack: they eschewed an affirmative defense and instead questioned the adequacy of the government’s proof that they acted unlawfully. Defenses are not antagonistic merely because they are not congruent. “In order to gain a severance based on antagonistic defenses, the antagonism ... must be such that if the jury believes one defendant, it is compelled to convict the other defendant.” United States v. PeñaLora, 225 F.3d 17, 33 (1st Cir.2000) (alteration in original) (emphasis in original) (internal quotation marks omitted). Put another way, “the tension between defenses must be so great that a jury would have to believe one defendant at the expense of the other.” United States v. Yefsky, 994 F.2d 885, 897 (1st Cir.1993)." }, { "docid": "8592773", "title": "", "text": "familial connections amongst the defendants to affect its determination of whether the defendants were co-conspirators. See Boylan, 898 F.2d at 246 (finding no abuse of the district court’s Rule 14 discretion where the judge issued “limiting instructions as to the admissibility of evidence against particular defendants and as to the need to determine guilt on an individual basis”); see also United States v. Soto-Beníquez, 356 F.3d 1, 30 (1st Cir.2004) (upholding district court’s denial of motion to sever where, among other factors, the court instructed the jury of its obligation to judge each defendant separately, considering only the evidence admissible against each respective defendant); United States v. Capelton, 350 F.3d 231, 239 (1st Cir.2003) (same). Further, an examination of the jury’s verdict shows that the jury heeded the court’s instructions, effectively considering the evidence and weighing it against each defendant separately. Boylan, 898 F.2d at 246 (upholding the district court’s denial of defendants’ Rule 14 motion because “[t]he discriminating verdict ... evidenced that the jurors were able to, and did, follow the court’s [limiting] instructions,” weighing against a finding of prejudice); see also DeCologero, 530 F.3d at 56 (evaluating risk of prejudice underlying appellant’s severance motion, and noting that the jury “tellingly” returned “highly individualized verdicts,” acquitting some defendants while convicting others, which showed that “[t]hese were not the verdicts of a jury confused about the identity and culpability of the individual defendants”); United States v. Houle, 237 F.3d 71, 76 (1st Cir.2001) (stating that, “[w]ith regard to the jury’s ability to segregate the evidence and understand the judge’s instructions, the verdict itself is often quite telling;” and noting the verdict in that case “show[ed] that the jury was able to compartmentalize evidence and apply it to each defendant,” weighing against a finding of prejudice warranting severance). For instance, the jury acquitted Trinh on one of the money laundering counts; acquitted Antwon in full; acquitted Anna on the substantive unlawful monetary transaction count while convicting her on the two conspiracy counts; and acquitted Stephanie on the substantive counts without reaching a determination as to the money laundering conspiracy count. Moreover," }, { "docid": "23382268", "title": "", "text": "two implicated Baltas, predicate acts 3 (kidnapping) and 23 (conspiracy to possess with intent to distribute heroin). These acts were also charged as substantive RICO violations. Furthermore, act 23 was separately charged as an offense in count 32, Baltas’s count of conviction. Thus, the counts were properly joined under Rule 8(a) as charging “two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Fed.R.Crim.P. 8(a). See United States v. Zannino, 895 F.2d 1, 16 (1st Cir.1990) (“offenses committed pursuant to the same (charged) racketeering enterprise and conspiracy may be joined in a single indictment”). The defendants were also properly joined. See United States v. Boylan, 898 F.2d 230, 245 (1st Cir.) (“So long as there is a responsible basis for the averments, charging an omnibus RICO conspiracy normally supplies the glue necessary to bond multiple defendants together in a single proceeding where all are accused of participating in the conspiracy.”). Baltas insists nonetheless that he was unduly prejudiced by the district courts denial of his motion for severance. Under Rule 14, a district court may order separate trials of counts or defendants “[i]f it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment ... or by such joinder for trial together....” Fed. R.Crim.P. 14. In making this determination, the district court enjoys wide latitude. See United States v. Rogers, 121 F.3d 12, 16 (1st Cir.1997). We review a district court’s refusal to sever for manifest abuse of discretion, United States v. DeLeon, 187 F.3d 60, 63 (1st Cir.1999), reversing only upon a “strong showing of evident prejudice,” United States v. O’Bryant, 998 F.2d 21, 25 (1st Cir.1993), that joinder “deprived defendant of a fair trial, resulting in a miscarriage of justice,” United States v. Tejeda, 974 F.2d 210, 219 (1st Cir.1992) (citations and internal quotation marks omitted). Because Baltas has failed to shoulder this burden, we affirm the district court’s ruling. Baltas maintains that he was prejudiced because the jury was allowed to hear evidence that would have been irrelevant or inadmissible" }, { "docid": "17991840", "title": "", "text": "in the same indictment should be tried together,” United States v. Houle, 237 F.3d 71, 75-76 (1st Cir.), cert. denied, 532 U.S. 1074, 121 S.Ct. 2234, 150 L.Ed.2d 224 (2001), and expressed reluctance to reverse a denial of severance where the defenses at issue are only “somewhat antagonistic,” United States v. Serafino, 281 F.3d 327, 329 (1st Cir.2002), and not “so irreconcilable as to involve fundamental disagreement over core and basic facts,” United States v. Penco-Lora, 225 F.3d 17, 34 (1st Cir.2000) (internal quotations omitted). Without elaborating at pointless length, we conclude that Capelton’s skeletal argument for reversal on this ground is unavailing in light of 1) his failure to point to any specific testimony at trial that prejudiced his own defense, and 2) the court’s explicit instruction to the jury that you must consider the counts and the defendants separately. Mr. White and Mr. Capelton are charged with several different counts in the indictment. The counts, and the defendants, have been joined for trial. However, the counts and the defendants must be considered separately. 2. Motion to Suppress At 3:00 p.m. on August 23, 2000, Connecticut State Troopers Jeffrey Campbell and John Tollis received a cell phone call in their police cruiser from a federal surveillance team monitoring Capelton’s movements. DEA agents provided the officers with a description of Capelton’s vehicle, and informed the troopers that the defendant was traveling south on Interstate 91, having just left the scene of a drug transaction in Springfield. The officers positioned their vehicle behind Capel-ton, and pulled the defendant over after observing him switch lanes without using his turn signal. A “pat frisk” of the defendant revealed a large wad of money in his front pocket that matched, upon examination, the serial numbers of the “buy money” that Fisher had earlier used to purchase crack cocaine from White. Because the government’s surveillance tapes failed to record Capelton actually exchanging drugs for money, the marked bills found on defendant’s person were the linchpin of the government’s circumstantial case against Capelton. Not surprisingly, Capelton argues on appeal that the district court erred when it" }, { "docid": "5749755", "title": "", "text": "14, a district court may order separate trials of counts or defendants “[i]f it appears that a defendant or the government is prejudiced by a joinder ... or by such joinder for trial together....” Fed. R.Crim.P. 14. In making this determination, the district court enjoys wide latitude. See United States v. Rogers, 121 F.3d 12, 16 (1st Cir.1997). We review a district court’s refusal to sever for “manifest abuse of discretion,” United States v. DeLeon, 187 F.3d 60, 63 (1st Cir.1999), to determine whether joinder “deprived defendant of a fair trial, resulting in a miscarriage of justice,” United States v. Tejeda, 974 F.2d 210, 219 (1st Cir.1992) (citations and internal quotation marks omitted). For the reasons set forth below, we find that Houle has failed to shoulder this burden, and therefore, affirm the district court’s ruling. The gravamen of Houle’s complaint is spillover prejudice. Specifically, he alleges the following: (1) that the evidentiary disparity between him and the other defendants created a “guilty by association” atmosphere; (2) that the jury heard evidence of violence committed by other defendants, which unfairly prejudiced him; and (3) that the district court’s limiting instructions were inadequate to allow the jury to properly compartmentalize the evidence against him, because he was a minor participant and the only non-Rico defendant. We begin our discussion by noting a principle that guides any severance analysis—that is, without a “serious risk that a joinder would compromise a specific trial right ... or prevent the jury from making a reliable judgment about guilt or innocence,” Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), defendants charged in the same indictment should be tried together. The policies supporting this preference are that it helps to prevent inconsistent verdicts, and conserves judicial resources. United States v. O’Bryant, 998 F.2d 21, 25 (1st Cir.1993). As such, defendants are not routinely granted separate trials because they feel it might improve their odds of acquittal. Zafiro, 506 U.S. at 540, 113 S.Ct. 933. We will now address Houle’s arguments. Houle first argues that the disparity in evidence created a" }, { "docid": "8592768", "title": "", "text": "the record reveals no manifest abuse of discretion by the district court in its denial of Trinh’s motion to sever. Trinh’s severance claim is that the court improperly denied his motion because his defense was irreconcilable with those of his co-defendants; Trinh bears the burden on appeal of “establishing] that any incompatibility was very substantial.” Peña-Lora, 225 F.3d at 34. Furthermore, “[t]o obtain severance on the grounds of conflicting defenses, a defendant has to demonstrate that the defenses are so irreconcilable as to involve fundamental disagreement over core and basic facts.” United States v. Paradis, 802 F.2d 553, 561 (1st Cir.1986) (emphasis added); United States v. Luciano-Pacheco, 794 F.2d 7, 9 (1st Cir.1986) (“[T]he need for severance turns on the degree of conflict, and the extent to which the antagonism goes beyond mere fingerpointing into the realm of fundamental disagreement over core and basic facts.”). Trinh falls far short of satisfying his substantial burden. To begin with, the only specific evidence Trinh points to in support of his irreconcilable defenses claim is his co-defendants’ counsel’s opening statement, during which Trinh contends he was portrayed as the mastermind of the marijuana and money laundering schemes. Such argumentation by counsel rarely is sufficient for establishing a “truly prejudicial antagonistic defense.” Peña-Lora, 225 F.3d at 34 n. 14 (noting that “[e]ach case [involving alleged irreconcilable defenses] must be assessed on its own facts”); United States v. Rose, 104 F.3d 1408, 1416 (1st Cir.1997) (“[T]he level of antagonism in defenses is measured by the evidence actually introduced at trial; argument by counsel is not evidence.”). Furthermore, much of co-defendants’ admitted evidence and testimony at trial did not conflict with Trinh’s defense that he was a law-abiding businessman who engaged in “legitimate” real estate transactions. For instance, co-defendants’ counsel presented evidence — including testimony from government witness DaCosta describing Trinh’s legitimate business activities and testimony from an IRS summary witness affirming Trinh’s valid sources of income — that, far from substantially conflicting with Trinh’s defense, served to further reinforce it by highlighting the legitimate nature of certain financial transactions in which he was involved. Additionally," }, { "docid": "23382269", "title": "", "text": "Under Rule 14, a district court may order separate trials of counts or defendants “[i]f it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment ... or by such joinder for trial together....” Fed. R.Crim.P. 14. In making this determination, the district court enjoys wide latitude. See United States v. Rogers, 121 F.3d 12, 16 (1st Cir.1997). We review a district court’s refusal to sever for manifest abuse of discretion, United States v. DeLeon, 187 F.3d 60, 63 (1st Cir.1999), reversing only upon a “strong showing of evident prejudice,” United States v. O’Bryant, 998 F.2d 21, 25 (1st Cir.1993), that joinder “deprived defendant of a fair trial, resulting in a miscarriage of justice,” United States v. Tejeda, 974 F.2d 210, 219 (1st Cir.1992) (citations and internal quotation marks omitted). Because Baltas has failed to shoulder this burden, we affirm the district court’s ruling. Baltas maintains that he was prejudiced because the jury was allowed to hear evidence that would have been irrelevant or inadmissible against him in a separate trial on the drug and firearms counts. In trying to prove his point, Baltas cursorily refers to the evidence relating to the predicate acts upon which the RICO charges rested, arguing that such evidence would not have been admissible in a trial without the RICO charges. He further contends that a separate trial would have inoculated the jury’s verdict from being tainted by spillover prejudice. None of these arguments have merit. First, “[tjhis courts rule is that those ‘who are indicted together should be tried together,’ and the district courts join-der in this case appropriately followed that presumption.” DeLeon, 187 F.3d at 63 (quoting O’Bryant, 998 F.2d at 25). Second, Baltas’s allegations of prejudice are rather conclusory, and thus do not suffice to overcome the presumption in favor of joinder. See United States v. Neal, 36 F.3d 1190, 1204 (1st Cir.1994) (conclusory allegations held insufficient to show requisite prejudice). “There is always some prejudice in any trial where more than one offense or offender are tried together — but such" }, { "docid": "17991839", "title": "", "text": "controls, not mine or the attorneys’ recollection of what was said. This corrective instruction refutes any argument that the district court abused its discretion in denying the request for a mistrial. C. Defendant Capelton’s Claims 1. Motion to Sever Capelton moved the district court for a severance after White disclosed in a pretrial hearing that he would be presenting a defense of entrapment. Anticipating that White would implicitly concede his participation in the course of presenting this defense, Capelton argued that White’s entrapment defense would undermine his own strategy of denying participation in the conspiracy and putting the government to its proof. We review the denial of a severance motion for manifest abuse of discretion. United States v. DeLeon, 187 F.3d 60, 63 (1st Cir.), cert. denied, 528 U.S. 1030, 120 S.Ct. 551, 145 L.Ed.2d 428 (1999). Capelton acknowledges on appeal “that the standard for severance is a strict one and the defendant must show that he could not have received a fair trial.” Indeed, we have previously recognized the general rule that “defendants charged in the same indictment should be tried together,” United States v. Houle, 237 F.3d 71, 75-76 (1st Cir.), cert. denied, 532 U.S. 1074, 121 S.Ct. 2234, 150 L.Ed.2d 224 (2001), and expressed reluctance to reverse a denial of severance where the defenses at issue are only “somewhat antagonistic,” United States v. Serafino, 281 F.3d 327, 329 (1st Cir.2002), and not “so irreconcilable as to involve fundamental disagreement over core and basic facts,” United States v. Penco-Lora, 225 F.3d 17, 34 (1st Cir.2000) (internal quotations omitted). Without elaborating at pointless length, we conclude that Capelton’s skeletal argument for reversal on this ground is unavailing in light of 1) his failure to point to any specific testimony at trial that prejudiced his own defense, and 2) the court’s explicit instruction to the jury that you must consider the counts and the defendants separately. Mr. White and Mr. Capelton are charged with several different counts in the indictment. The counts, and the defendants, have been joined for trial. However, the counts and the defendants must be considered separately." }, { "docid": "2274881", "title": "", "text": "or anything having to do with the prior criminal matter.” We thus hold that the district court did not err in admitting Mr. Frank’s letters. III. Mr. Ahlers contends that the district court erred in allowing him and Mr. Frank to be tried together. Although Mr. Ahlers filed a pretrial motion for severance, he did not renew the motion at the close of the government’s case or at the close of all of the evidence, and we thus review the denial of the motion for plain error. See United States v. Mathison, 157 F.3d 541, 546 (8th Cir.1998), cert. denied, 525 U.S. 1165, 119 S.Ct. 1081, 143 L.Ed.2d 83 (1999). To succeed on plain-error review of the denial of the motion to sever, Mr. Ahlers must show “an abuse of discretion by the trial court as well as ‘prejudice affecting his substantial rights and an extraordinary reason to reverse.’ ” Id. (quoting United States v. Rogers, 150 F.3d 851, 855-56 (8th Cir.1998), cert. denied, 525 U.S. 1113, 119 S.Ct. 888, 142 L.Ed.2d 787 (1999)). We conclude, for the reasons that follow, that the evidence of prejudice and abuse of discretion adduced here by Mr. Ahlers has not met this heavy burden. In counts 1-15, 17-22, 29^44, and 47-48 of the first indictment, and both counts of the second indictment, Mr. Frank was the only defendant. In counts 16, 23-28, 45, 46, and 49 of the first indictment, both defendants were charged. Thus, while Mr. Frank was indicted on more counts than Mr. Ahlers was, Mr. Ahlers was not charged with any counts that Mr. Frank was not also charged with. All fifty-one counts were tried together over the course of a six-day trial. Rule 14 of the Federal Rules of Criminal Procedure allows a district court to grant a severance of defendants if it appears that a defendant or the government is prejudiced by a joinder. See Fed. R.Crim.P. 14(a). The United States Supreme Court has noted that the joinder and severance rules “are designed to promote economy and efficiency and to avoid a multiplicity of trials, so long as" }, { "docid": "22203825", "title": "", "text": "alleged to have “participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.” Fed. R.Crim.P. 8(b). Generally, we adhere to the principle that defendants indicted together should be tried together, and a defendant must show that he was prejudiced by the denial of a severance motion in order to establish that the district court abused its broad discretion in that regard. United States v. Strickland, 245 F.3d 368, 384 (4th Cir.2001); see also Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (noting that courts should grant severance “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence”); United States v. Harris, 498 F.3d 278, 291 (4th Cir.2007) (noting that a district court abuses its discretion “only where the trial court’s decision to deny a severance deprives the defendants of a fair trial and results in a miscarriage of justice”) (citation and internal quotation marks omitted); Fed.R.Crim.P. 14(a) (“If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.”). Moreover, a defendant is not entitled to severance merely because he might have had a better chance of acquittal in a separate trial. Zafiro, 506 U.S. at 540, 113 S.Ct. 933. 1 The presence of conflicting or antagonistic defenses alone does not require severance under Rule 14(a). Id. at 538, 113 S.Ct. 933. “The mere presence of hostility among defendants ... or the desire of one to exculpate himself by inculpating another [are] insufficient grounds to require separate trials.” United States v. Spitler, 800 F.2d 1267, 1271 (4th Cir.1986) (citation, alterations, and internal quotation marks omitted). The antagonistic defenses must involve more than “finger pointing.” United States v. Najjar, 300 F.3d 466, 474 (4th Cir.2002)." }, { "docid": "13631144", "title": "", "text": "affects interstate commerce.” Zorrilla, 93 F.3d at 8. We have held in other cases that involvement in the drug trade satisfies the “effect on interstate commerce” prong of the money laundering statute. See, e.g., Owens, 167 F.3d at 755 (affirming the conviction where there was evidence that the money involved in the transaction was generated by a drug enterprise transporting cocaine and cash between Providence and Boston); Gonzalez-Maldonado, 115 F.3d at 21 (affirming conviction under § 1956 where the jury could have inferred that the defendant engaged in telephone conversations that were part of illegal drug activity and not a legitimate business). Therefore, we reject Burgos’s claim that there was insufficient proof of a link between his attempted financial transaction and interstate commerce. IV. Severance The district court denied Burgos’s motion to sever the two counts of the superseding indictment in a written memorandum and order. We review that determination for manifest abuse of discretion. See United States v. DeLeon, 187 F.3d 60, 63 (1st Cir.1999). Federal Rule of Criminal Procedure 14 provides: “If it appears that a defendant or the government is prejudiced by a join-der of offenses or of defendants in an indictment or information or by such join-der for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.” Fed.R.Crim.P. 14 (emphasis added). We will overturn a court’s exercise of its discretion in considering a motion for severance “only upon a demonstration of manifest abuse.” United States v. Boylan, 898 F.2d 230, 246 (1st Cir.1990). “This is a difficult battle for a defendant to win. There is always some prejudice in any trial where more than one offense or offender are tried together — but such ‘garden variety’ prejudice, in and of itself, will not suffice.” Id. Burgos must demonstrate that the allegedly improper joinder “likely deprived [him] of a fair trial.” United States v. Bartelho, 129 F.3d 663, 678 (1st Cir.1997) (internal quotation marks omitted). Burgos’s claim falls far short of this standard. Burgos argues that the jury may have been" }, { "docid": "5749754", "title": "", "text": "States v. Boylan, 898 F.2d 230, 245 (1st Cir.1990). The fact that Houle was not charged as a RICO defendant is of no consequence. See Zannino, 895 F.2d at 16; United States v. Krout, 66 F.3d 1420, 1429 (5th Cir.1995) (“If an indictment charges RICO violations, offenses committed as part of the pattern of racketeering activity are properly joined even if the defendant objecting is not named in the RICO count.”); United States v. Garcia, 848 F.2d 1324, 1333 (2d Cir.1988) (joinder found proper even though not all the defendants were named in the RICO count), rev’d on other grounds Gómez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). Therefore, we find that the district court correctly denied Houle’s severance request. B. Severance Houle unsuccessfully moved to sever his trial from those of his codefendants on various occasions both before and during trial. Here, he assigns error to the district court’s refusal to sever, and argues that he was prejudiced by the district court’s denial of his motions. Under Rule 14, a district court may order separate trials of counts or defendants “[i]f it appears that a defendant or the government is prejudiced by a joinder ... or by such joinder for trial together....” Fed. R.Crim.P. 14. In making this determination, the district court enjoys wide latitude. See United States v. Rogers, 121 F.3d 12, 16 (1st Cir.1997). We review a district court’s refusal to sever for “manifest abuse of discretion,” United States v. DeLeon, 187 F.3d 60, 63 (1st Cir.1999), to determine whether joinder “deprived defendant of a fair trial, resulting in a miscarriage of justice,” United States v. Tejeda, 974 F.2d 210, 219 (1st Cir.1992) (citations and internal quotation marks omitted). For the reasons set forth below, we find that Houle has failed to shoulder this burden, and therefore, affirm the district court’s ruling. The gravamen of Houle’s complaint is spillover prejudice. Specifically, he alleges the following: (1) that the evidentiary disparity between him and the other defendants created a “guilty by association” atmosphere; (2) that the jury heard evidence of violence committed" }, { "docid": "19735112", "title": "", "text": "conspiracy, but present a case of duress because she had been under the influence of Mendes, who had pled guilty. The court denied the motion for severance saying Tejeda could crossexamine Figueroa, and that no inconsistent defenses were involved. On May 12, 2005, Tejeda proposed to the trial court that it bifurcate the trial, differentiating the evidence applicable to his case and to Figueroa’s. Specifically, Tejeda proposed that he put on his case, the prosecution put on its rebuttal, then the jury decide on Tejeda’s guilt or innocence alone. Thereafter, Figueroa would present her defense, the prosecution its rebuttal, and the jury would then render its verdict as to Figueroa. The court denied Tejeda’s motion. The motion was renewed at the close of the prosecution’s case-in-chief and again denied. The prosecution questions whether the severance motion on the day of trial and the bifurcation motion were timely. See Fed.R.Crim.P. 12(b)(3)(D) (severance motions must be made before trial). We bypass the question and rule on the merits. Severance should be granted where “defenses are so irreconcilable as to involve fundamental disagreement over core and basic facts.” United States v. Pena-Lora, 225 F.3d 17, 34 (1st Cir.2000) (quoting United States v. Paradis, 802 F.2d 553, 561 (1st Cir.1986) (emphases added)) (internal quotation marks omitted). But where there is merely some dissonance, where the defenses are just “somewhat antagonistic,” we will usually not reverse a trial court’s denial of severance. United States v. Serafino, 281 F.3d 327, 329 (1st Cir.2002). Tejeda relies on United States v. Johnson, 478 F.2d 1129 (5th Cir.1973), to argue that severance was necessary in this case. But in Johnson, the co-defendants’ theories of defense were truly antagonistic. While Johnson defended on the basis that he was not present when the charged crime was committed, his co-defendant made a confession explicitly and necessarily incriminating Johnson and defended only on the basis that he lacked the necessary mens rea. Id. at 1131-32. Here, by contrast, there was no true antagonism of defenses. Tejeda’s defense explicitly acknowledged there was a drug conspiracy; he simply argued the prosecution could not prove beyond" }, { "docid": "17991838", "title": "", "text": "of an inappropriate remark by the prosecution in its closing argument. United States v. Hernandez, 218 F.3d 58, 68 (1st Cir.2000). Here, Capelton does not claim that the government intentionally misrepresented defense counsel’s statements, or otherwise acted in bad faith. While the transcript produced on appeal contains the word “rely,” even the court was unable to discern what Capelton’s attorney actually said. Nevertheless, the judge issued the following curative instruction to the jury: First of all, as you heard the closings I believe Mr. Newhouse [the prosecutor] made reference to his recollection of a statement made during Mr. Black’s closing. His recollection of this statement was that Mr. Black said, “All officers will lie on other officer’s reports.” During the break I wanted to make sure you understand that Mr. Black’s recollection of what he said, and his intent was to say, “All the officer’s rely on other officer’s reports.” I passed that on to you so that you will know it, but remind you again that it’s your recollection of what is said that controls, not mine or the attorneys’ recollection of what was said. This corrective instruction refutes any argument that the district court abused its discretion in denying the request for a mistrial. C. Defendant Capelton’s Claims 1. Motion to Sever Capelton moved the district court for a severance after White disclosed in a pretrial hearing that he would be presenting a defense of entrapment. Anticipating that White would implicitly concede his participation in the course of presenting this defense, Capelton argued that White’s entrapment defense would undermine his own strategy of denying participation in the conspiracy and putting the government to its proof. We review the denial of a severance motion for manifest abuse of discretion. United States v. DeLeon, 187 F.3d 60, 63 (1st Cir.), cert. denied, 528 U.S. 1030, 120 S.Ct. 551, 145 L.Ed.2d 428 (1999). Capelton acknowledges on appeal “that the standard for severance is a strict one and the defendant must show that he could not have received a fair trial.” Indeed, we have previously recognized the general rule that “defendants charged" }, { "docid": "23454734", "title": "", "text": "years for Nieves and eight years for Segui-Rodriguez. Cunningham was sentenced to serve 325 months in prison and to a supervised release period of five years. Additionally, Cunningham and Casas were each fined $50, Nieves was fined $150, and Segui-Rodriguez was fined $100. III. A. Pre-trial claims 1. Denial of Motion for Severance (Casas) Casas appeals the denial of his motion to sever his trial from that of his three co-defendants. Casas argues that he was prejudiced by being tried with his three co-defendants because much of the evidence presented at trial would not have been admissible against him in a separate trial. In particular, Casas points to the testimony of Elizabeth Morales regarding her trips to Panama and to Agents Stoo-thoffs and Escalera’s testimony about the incident at the San Juan airport on March 21,1994. Review of the denial of a motion to sever is for abuse of discretion. The key question is whether the “allegedly improper joinder likely deprived [the defendant] of a fair trial.” United States v. Burgos, 254 F.3d 8, 13 (1st Cir.2001) (internal quotation marks and citation omitted). Severance in cases where the defendants were indicted together creates the possibility of inconsistent verdicts and taxes judicial resources. United States v. Houle, 237 F.3d 71, 76 (1st Cir.2001). As such, a defendant wishing to sever his trial from commonly indicted co-defendants must make a particularly compelling showing of prejudice. See Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). One classic way of attempting to show that a trial was not fan is to argue that testimony otherwise inadmissible against a defendant in a separate trial has been admitted in the joint trial. Casas presents three instances of such testimony: Morales’s testimony about smuggling heroin from Panama into the United States and Agent Stoothoffs and Agent Escal-era’s testimony about the incident at the Puerto Rico Airport. At least some of this testimony, however, would likely have been admissible against Casas in a separate trial. See United States v. Brandon, 17 F.3d 409, 440 (1st Cir.1994) (defendants cannot seek severance based" }, { "docid": "19948933", "title": "", "text": "government to redact the incriminating portion of the Green post-arrest statement, and instructed Green’s counsel not to adduce any other evidence that might inculpate Page. We normally review the denial of a motion to sever only for a manifest abuse of discretion. United States v. Tejeda, 481 F.3d 44, 54 (1st Cir.), cert. denied, — U.S. -, 128 S.Ct. 612, 169 L.Ed.2d 393 (2007). “ ‘[T]he general rule is that those indicted together are tried together to prevent inconsistent verdicts and to conserve judicial and prosecutorial resources, [and] severance is particularly difficult to obtain where, as here, multiple defendants share a single indictment.’ ” United States v. Casas, 425 F.3d 23, 37 (1st Cir.2005) (citation omitted), cert. denied, 547 U.S. 1061, 126 S.Ct. 1670, 164 L.Ed.2d 409 (2006); Fed.R.Crim.P. 8(b). We need not reach the merits of the appellants’ arguments. Since Green failed in the trial court either to submit his own severance motion or expressly to join in the Page motion, Green has waived his right to challenge the decision to conduct a joint trial. See Fed.R.Crim.P. 12(b)(3)(D), (e); United States v. Pena-Lora, 225 F.3d 17, 33 (1st Cir.2000). On appeal, Page simply adopts by reference the Green challenge to the denial of Page’s severance motion, see Fed. R.App. P. 28(i), wherein Green focused solely on how the denial harmed the Green defense. Page thus has presented no additional argumentation as to how the denial of severance might have caused him actual prejudice. United States v. David, 940 F.2d 722, 737 (1st Cir.1991) (“Adoption by reference, however, cannot occur in a vacuum; to be meaningful, the arguments adopted must be readily transferrable from the proponent’s case to the adopter’s case.”). Indeed, to the extent the district court’s order might have limited Green’s ability to inculpate Page, Page seemingly benefitted from the order. Accordingly, we treat these appellate arguments as having been waived. Affirmed. . The district court sentenced Page to 240 months’ imprisonment, Green to 63 months; neither defendant appeals his sentence. . Given the uncontested evidence that Agent Hedrick served for sixteen years in drug-law enforcement, we also" }, { "docid": "8592767", "title": "", "text": "United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), and help to avoid “inconsistent verdicts,” id. (quoting Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)). Rather, severance will be warranted “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Celestin, 612 F.3d at 19 (quoting Zafiro, 506 U.S. at 539, 113 S.Ct. 933). The record shows that Trinh first moved to sever his trial from his co-defendants on the second day of trial, asserting that co-defendants’ counsel’s opening statements were antagonistic to his defense because they wrongfully characterized him as the “mastermind” of both the marijuana and money laundering schemes; in contrast, Trinh’s position was that Quoc and Tai were the actual leaders of the conspiracy. Trinh then renewed his motion to sever at various times during trial which, following careful consideration, the trial judge denied. A review of the record reveals no manifest abuse of discretion by the district court in its denial of Trinh’s motion to sever. Trinh’s severance claim is that the court improperly denied his motion because his defense was irreconcilable with those of his co-defendants; Trinh bears the burden on appeal of “establishing] that any incompatibility was very substantial.” Peña-Lora, 225 F.3d at 34. Furthermore, “[t]o obtain severance on the grounds of conflicting defenses, a defendant has to demonstrate that the defenses are so irreconcilable as to involve fundamental disagreement over core and basic facts.” United States v. Paradis, 802 F.2d 553, 561 (1st Cir.1986) (emphasis added); United States v. Luciano-Pacheco, 794 F.2d 7, 9 (1st Cir.1986) (“[T]he need for severance turns on the degree of conflict, and the extent to which the antagonism goes beyond mere fingerpointing into the realm of fundamental disagreement over core and basic facts.”). Trinh falls far short of satisfying his substantial burden. To begin with, the only specific evidence Trinh points to in support of his irreconcilable defenses claim is his co-defendants’ counsel’s" }, { "docid": "2274882", "title": "", "text": "conclude, for the reasons that follow, that the evidence of prejudice and abuse of discretion adduced here by Mr. Ahlers has not met this heavy burden. In counts 1-15, 17-22, 29^44, and 47-48 of the first indictment, and both counts of the second indictment, Mr. Frank was the only defendant. In counts 16, 23-28, 45, 46, and 49 of the first indictment, both defendants were charged. Thus, while Mr. Frank was indicted on more counts than Mr. Ahlers was, Mr. Ahlers was not charged with any counts that Mr. Frank was not also charged with. All fifty-one counts were tried together over the course of a six-day trial. Rule 14 of the Federal Rules of Criminal Procedure allows a district court to grant a severance of defendants if it appears that a defendant or the government is prejudiced by a joinder. See Fed. R.Crim.P. 14(a). The United States Supreme Court has noted that the joinder and severance rules “are designed to promote economy and efficiency and to avoid a multiplicity of trials, so long as these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial.” Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (internal quotations omitted). We have noted that generally defendants “charged in a conspiracy should be tried together, particularly where proof of the charges against the defendants is based upon the same evidence and acts.” United States v. Boyd, 610 F.2d 521, 525 (8th Cir.1979), cert. denied, 444 U.S. 1089, 100 S.Ct. 1052, 62 L.Ed.2d 777 (1980). A district court may depart from this general rule by granting a severance only “upon defendant’s showing of real prejudice,” which may be demonstrated by showing either that the defendants’ defenses are irreconcilable or that the jury will be unable to compartmentalize the evidence as it relates to the separate defendants. United States v. Washington, 318 F.3d 845, 858 (8th Cir.2003), cert. denied, - U.S. - & -, 124 S.Ct. 209, 157 L.Ed.2d 152 (2003). Mr. Ahlers does not argue that his defense was irreconcilable with" }, { "docid": "19735113", "title": "", "text": "as to involve fundamental disagreement over core and basic facts.” United States v. Pena-Lora, 225 F.3d 17, 34 (1st Cir.2000) (quoting United States v. Paradis, 802 F.2d 553, 561 (1st Cir.1986) (emphases added)) (internal quotation marks omitted). But where there is merely some dissonance, where the defenses are just “somewhat antagonistic,” we will usually not reverse a trial court’s denial of severance. United States v. Serafino, 281 F.3d 327, 329 (1st Cir.2002). Tejeda relies on United States v. Johnson, 478 F.2d 1129 (5th Cir.1973), to argue that severance was necessary in this case. But in Johnson, the co-defendants’ theories of defense were truly antagonistic. While Johnson defended on the basis that he was not present when the charged crime was committed, his co-defendant made a confession explicitly and necessarily incriminating Johnson and defended only on the basis that he lacked the necessary mens rea. Id. at 1131-32. Here, by contrast, there was no true antagonism of defenses. Tejeda’s defense explicitly acknowledged there was a drug conspiracy; he simply argued the prosecution could not prove beyond a reasonable doubt that he was the New York source of drugs for the conspiracy. Thus, Figueroa’s defense that there was a drug conspiracy, but that she had acted under duress, was not an antagonistic defense at all. Her defense did not in any way hinge on Tejeda’s participation in the conspiracy. Indeed, even if the jury accepted her duress defense it could either accept or reject Tejeda’s defense. Severance is not required every time a duress defense is asserted by one defendant. Peña-Lora, 225 F.3d at 34; United States v. Arias-Villanueva, 998 F.2d 1491, 1507 (9th Cir.1993), overruled on other grounds by United States v. Jimenez-Ortega, 472 F.3d 1102, 1102-04 (9th Cir.2007). Even if Tejeda had shown that severance from Figueroa was appropriate in this drug conspiracy case, it was his burden to show prejudice. Boylan, 898 F.2d at 246; Porter, 764 F.2d at 12. “[P]reju-dice means more than just a better chance of acquittal at a separate trial.” Boylan, 898 F.2d at 246 (quoting United States v. Martinez, 479 F.2d 824, 828 (1st" } ]

[ { "docid": "12670159", "title": "", "text": "MEMORANDUM OF DECISION ZOBEL, District Judge. On October 1, 1985 the Supreme Judicial Court of Massachusetts promulgated an ethical rule, Supreme Judicial Court Rule 3:08 Prosecution Function 15 (“PF 15”), to take effect on January 1, 1986. The rule provides: It is unprofessional conduct for a prosecutor to subpoena an attorney to a grand jury without prior judicial approval in circumstances where the prosecutor seeks to compel the attorney/witness to provide evidence concerning a person who is represented by the attomey/witness. Plaintiffs, who are members of the Massachusetts Bar and federal prosecutors, brought this action seeking both a declaratory judgment that the rule is invalid as applied to them and an injunction against its enforcement. Defendants are the members of the Board of Bar Overseers of the Supreme Judicial Court of Massachusetts and Bar Counsel for the Board, the individuals charged with enforcing the Canons of Ethics and all disciplinary rules promulgated by the Supreme Judicial Court (“SJC”). In addition, the Massachusetts Bar Association, the Boston Bar Association, and the Massachusetts Association of Criminal Defense Lawyers were permitted to intervene as defendants. This court held a hearing on plaintiffs’ motion for a preliminary injunction, but all parties have since agreed that the court might, on the basis of the arguments and submissions there presented, proceed directly to final judgment. I accordingly do so. Plaintiffs assert that PF 15 violates the Supremacy Clause, U.S. Const., art. VI, cl. 2 and Fed.R.Crim.P. 57. The central issue underlying that assertion is their contention that PF 15 is inconsistent with Rule 17 of the Federal Rules of Criminal Procedure. A preliminary question concerns whether PF 15 has been incorporated by Local Rule 5(d)(4)(B) for the District of Massachusetts and is therefore now a rule of this court. Whatever the resolution of that question, however, the ultimate issue remains the same: does PF 15 conflict with federal law? For the reasons set forth below, I hold that it does not. Part I of this opinion discusses whether the district courts’ supervisory power over grand jury proceedings includes the authority to perform the initial review that" } ]

[ { "docid": "13835852", "title": "", "text": "devise disciplinary rules that require prosecutors to secure judicial approval before subpoenaing attorneys. D.Mass.R. 5(d)(4)(B); Mass.S.J.C.R. 3:08 (PF 15); Tenn.Ct.R.DR 7-103; Va.S.Ct.R. 3A:12 (codified as DR 8-102(A)). This roster now includes the Supreme Court of Pennsylvania, which has enacted Rule 3.10 of the Rules of Professional Conduct. The Rule provides: A public prosecutor or other governmental lawyer shall not, without prior judicial approval, subpoena an attorney to appear before a grand jury or other tribunal investigating criminal activity in circumstances where the prosecutor or other governmental lawyer seeks to compel the attorney/witness to provide evidence concerning a person who is or has been represented by the attorney/witness. Adopted Nov. 7, 1988, effective Nov. 26, 1988. COMMENT It is intended that the required “prior judicial approval” will normally be withheld unless, after a hearing conducted with due regard for the need for appropriate secrecy, the court finds (1) the information sought is not protected from disclosure by Rule 1.6 [concerning confidentiality of information], the attorney-client privilege or the work product doctrine; (2) the evidence sought is relevant to the proceeding; (3) compliance with the subpoena would not be unreasonable or oppressive; (4) the purpose of the subpoena is not primarily to harass the attorney/witness or his or her client; and (5) there is no other feasible alternative to obtain the information sought. Although various statutes and the Federal Rules of Procedure constitute the primary means for regulating practice in the federal district courts, the judges of each district are authorized to promulgate and amend local rules of practice. 28 U.S.C. § 2071(a); Fed.R.Civ.P. 83; Fed.R.Crim.P. 57. Pursuant to this rulemaking power, all three federal district courts situated in Pennsylvania ostensibly revised their local rules to state in terms that Rule 3.10 had no application in their respective jurisdictions. Local Rule 22 of the United States District Court for the Western District of Pennsylvania provides that the “Rules of Professional Conduct adopted by this court are the Rules of Professional Conduct adopted by the Supreme Court of Pennsylvania, as amended from time to time by the state court, except as otherwise provided" }, { "docid": "16224962", "title": "", "text": "not extend so far as to permit it to impose upon the prosecutor a legal obligation to present exculpatory evidence to the grand jury. Williams, — U.S. at-, 112 S.Ct. at 1746. The court reasoned that: ... any power federal courts may have to fashion, on their own initiative, rules of grand jury procedure is a very limited one, not remotely comparable to the power they maintain over their own proceedings. It certainly would not permit judicial reshaping of the grand jury institution, substantially altering the traditional relationships between the prosecutor, the constitutional court and the grand jury itself. (Citations omitted). Id. — U.S. at -, 112 S.Ct. at 1744. R. Enterprises, Williams, and other cases in which the supreme court has been reluctant to impose substantive restraints on the grand jury, suggest to us that the district court may not under the guise of its supervisory power or its local rule-making power, impose the sort of substantive restraint on the grand jury that is contemplated by Rule 3.10. The only court which has considered and upheld a rule of conduct similar to Rule 3.10 is the Court of Appeals for the First Circuit. In United States v. Klubock, 832 F.2d 649 (1st Cir.1986), vacated, op. withdrawn, on reh., en banc, 832 F.2d 664 (1st Cir.1987), the Supreme Judicial Court of Massachusetts had adopted the following rule of professional conduct known as Prosecutorial Function 15 (PF 15): It is unprofessional conduct for a prosecutor to subpoena an attorney to a grand jury without prior judicial approval in circumstances where the prosecutor seeks to compel the attorney/witness to provide evidence concerning a person who is represented by the attorney/witness. A panel of the Court of Appeals for the First Circuit, in a 2-1 decision, upheld the rule holding that PF 15 was well within the rule-making power of the district court to regulate the conduct of attorneys who practice before them. Klubock, 832 F.2d at 653. However, the court gave no consideration to the fact that, while PF 15 was labeled a rule of conduct, it was in fact a procedural" }, { "docid": "343960", "title": "", "text": "change in the law of the attorney-client privilege, it is arguably beyond even the Supreme Court’s rule-making power. See Fed-R-Evid. 501 (the rules of privilege, in non-diversity cases, “shall be governed by the common law\"). See also 28 U.S.C. § 2076 (1982) (providing a \"fast track” method for congressional ratification of Supreme Court amendments to the Federal Rules of Evidence, save ”[a]ny such amendment creating, abolishing, or modifying a privilege,\" which can only be adopted by a full-blown act of Congress). BREYER, Circuit Judge, with whom SELYA, Circuit Judge, joins (dissenting). This case involves two rules. The first rule is a Massachusetts Supreme Judicial Court rule of professional conduct that says that it is “unprofessional” for a “prosecutor to subpoena an attorney to a grand jury without prior judicial approval” where the prosecutor “seeks to compel” testimony about a client. Mass.SJ.C. Rule 3:08, PF 15. The second rule is a federal district court local rule that cross-references the first rule. It says that [a]cts or omissions ... that violate the ethical requirements and rules concerning the practice of law of the Commonwealth of Massachusetts [including S.J.C. Rule 3:08], shall constitute misconduct and shall be grounds for discipline. D.Mass. Local Rule 5(d)(4)(B). Three members of this Court of Appeals, sitting en banc, find this second rule — the federal district court rule — lawful. In my view, however, as presently written, that rule, at least insofar as it incorporates PF 15, falls outside the district court’s rulemaking power. In particular, the procedure that the district court followed in adopting the rule violates Federal Rule of Criminal Procedure 57, which permits a district court to “make and amend rules governing its practice” only “after giving appropriate public notice and an opportunity to comment.” The three “majority” members of the court would avoid the procedural question because the parties did not raise it in the district court or in their briefs on appeal. The majority thus follow a well-established rule that guides appellate court practice in the ordinary case. Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir.1983); cf." }, { "docid": "13835851", "title": "", "text": "136 U.Pa.L.Rev. 1783, 1786- 89 (1988). This revision in policy has inspired a vigorous national debate about the propriety and ramifications of compelling lawyers to testify before investigative bodies. See, e.g., Pierce & Colamarino, Defense Counsel as a Witness for the Prosecution: Curbing the Practice of Issuing Grand Jury Subpoenas to Counsel for Targets of Investigations, 36 Hastings L.J. 821 (1985); Subin, The Lawyer as Superego: Disclosure of Client Confidences to Prevent Harm, 70 Iowa L.Rev. 1091, 1178-79 (1985); Note, A Critical Appraisal of the Justice Department Guidelines for Grand Jury Subpoenas Issued to Defense Attorneys, 1986 Duke L.J. 145; Note, Grand Jury Subpoenas of a Target’s Attorney: A Need for a Preliminary Showing, 22 Ga.L.Rev. 747 (1986); Lawyer Cited for Contempt Over Fee Data, N.Y. Times, Apr. 18, 1991, at B1, col. 5; Thorn-burgh Policy Leads to a Sharp Ethics Battle, N.Y. Times, Mar. 1, 1991, at B4, col. 3; New Rule Set on Lawyer Subpoenas, Nat’l L.J., Nov. 4, 1985, at 3, 42. It also has motivated some state and federal courts to devise disciplinary rules that require prosecutors to secure judicial approval before subpoenaing attorneys. D.Mass.R. 5(d)(4)(B); Mass.S.J.C.R. 3:08 (PF 15); Tenn.Ct.R.DR 7-103; Va.S.Ct.R. 3A:12 (codified as DR 8-102(A)). This roster now includes the Supreme Court of Pennsylvania, which has enacted Rule 3.10 of the Rules of Professional Conduct. The Rule provides: A public prosecutor or other governmental lawyer shall not, without prior judicial approval, subpoena an attorney to appear before a grand jury or other tribunal investigating criminal activity in circumstances where the prosecutor or other governmental lawyer seeks to compel the attorney/witness to provide evidence concerning a person who is or has been represented by the attorney/witness. Adopted Nov. 7, 1988, effective Nov. 26, 1988. COMMENT It is intended that the required “prior judicial approval” will normally be withheld unless, after a hearing conducted with due regard for the need for appropriate secrecy, the court finds (1) the information sought is not protected from disclosure by Rule 1.6 [concerning confidentiality of information], the attorney-client privilege or the work product doctrine; (2) the evidence sought is" }, { "docid": "12670185", "title": "", "text": "grand jury investigation. . In fact, PF 15 prescribes no standards at all to guide a court in making its determination. Although included in the original version submitted by the Massachusetts Bar Association to the SJC, the standards were ultimately deleted from the rule. See Memorandum of Defendants, App. D. . Plaintiffs have construed PF 15 to require judicial approval before issuance of a subpoena by the clerk, as provided in Fed.R.Crim.P. 17(a). But a prosecutor can still pick up a blank subpoena from the court, fill it in as permitted under Rule 17(a), and then seek court approval. PF 15 merely provides that \"[i]t is unprofessional conduct for a prosecutor to subpoena an attorney ... without prior judicial approval____” (emphasis supplied). By its terms, PF 15 simply requires approval at some time prior to service. . The Local Rules of this court are currently under revision. . But cf. United States v. Kelly, 550 F.Supp. 901 (D.Mass.1982) (assuming that Local Rule 5(d)(4)(B) incorporates by reference Massachusetts ethical rules relating to the Prosecution Function). . Local Rules, if valid, have the force of law. United States v. Hvass, 355 U.S. 570, 78 S.Ct. 501, 2 L.Ed.2d 496 (1958). . See also 28 U.S.C.A. § 2071 (West 1982): The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed by the Supreme Court. Even if PF 15 were not automatically incorpo- rated, the last sentence of Rule 57 would permit judges to regulate their practice in order to assist federal prosecutors to comply with the ethical rule, if it is valid. . The Rule 17(a) requirement that a subpoena must be issued by the clerk under seal of the court is merely declaratory of statutory law, namely, 28 U.S.C.A. § 1691 (West 1966) which states, \"All writs and process issuing from a court of the United States shall be under the seal of the court and signed by the clerk thereof.\" 2" }, { "docid": "16431546", "title": "", "text": "United States Attorney’s ensuing challenge by the narrowest of margins. See United States v. Klubock, 639 F.Supp. 117 (D.Mass.1986), aff'd, 832 F.2d 664 (1st Cir.1987) (equally divided en banc). Crucial to the district court’s holding was the fact that PF 15 imposed no substantive limitations on the right to issue subpoenas. See id. at 120 & n. 7, 124. For the next twelve years, PF 15 held sway in the District of Massachusetts. In the interim, the Rhode Island Supreme Court adopted a rule of conduct requiring prosecutors to obtain judicial approval pri- or to issuing attorney subpoenas. See R.I. Sup.Ct. Rules, Art. V., R. Prof'l Conduct 3.8 & cmt. (adopted Nov. 1, 1988). This rule closely resembled PF 15, with two significant deviations: its reach extended to subpoenas outside the grand jury context, and its text included a comment outlining substantive standards to be applied by a court in determining whether to sanction an attorney subpoena request. See id. Specifically, the comment suggested that judicial approbation should be withheld unless, inter alia, the information sought was (a) not privileged, (b) “essential” to the government’s investigation, and (c) unobtainable from any “other feasible alternative.” Id. When the United States District Court for the District of Rhode Island incorporated the state standard into its local rules on April 20, 1989, the United States Attorney for that district challenged it. In Whitehouse v. United States District Court, 53 F.3d 1349 (1st Cir.1995), a panel of this court upheld the local rule, albeit strongly suggesting that a different result would obtain were the criteria limned in the comment embedded in the text of the rule itself (and, thus, made mandatory rather than precatory). See id. at 1357-58 & n. 12. We temporarily shift our focus to the national stage. In 1990, the American Bar Association (the ABA) amended Rule 3.8 of the Model Rules of Professional Conduct by adding a new paragraph (f) and comment: The prosecutor in a criminal case shall: (f) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present" }, { "docid": "16224963", "title": "", "text": "and upheld a rule of conduct similar to Rule 3.10 is the Court of Appeals for the First Circuit. In United States v. Klubock, 832 F.2d 649 (1st Cir.1986), vacated, op. withdrawn, on reh., en banc, 832 F.2d 664 (1st Cir.1987), the Supreme Judicial Court of Massachusetts had adopted the following rule of professional conduct known as Prosecutorial Function 15 (PF 15): It is unprofessional conduct for a prosecutor to subpoena an attorney to a grand jury without prior judicial approval in circumstances where the prosecutor seeks to compel the attorney/witness to provide evidence concerning a person who is represented by the attorney/witness. A panel of the Court of Appeals for the First Circuit, in a 2-1 decision, upheld the rule holding that PF 15 was well within the rule-making power of the district court to regulate the conduct of attorneys who practice before them. Klubock, 832 F.2d at 653. However, the court gave no consideration to the fact that, while PF 15 was labeled a rule of conduct, it was in fact a procedural rule which set up a mechanism of judicial review in such a way as no other rule of conduct ever has. Chief Judge Campbell, dissenting, reasoned that whether or not PF 15 was labeled a rule of conduct, the limitation placed by the rule upon the grand jury’s subpoena power was far too “controversial and delicate to be the sort of matter of detail that fits within a district court's local rule making power.” Id. at 659, 660. Judge Campbell continued: “If a rule like PF 15 is required, Congress or, at least, the Supreme Court under its rulemaking authority, acting at the national level, should promulgate it. A district court may not affect such a fundamental change through local rules.” Id. at 663-664. On reconsideration, the court of appeals, sitting en banc, failed to produce a majority opinion. Instead the decision of the panel was affirmed by an equally divided court in a 3-3 decision. After a careful examination of the various opinions in in Klubock we find the dissenting opinion of Chief Judge" }, { "docid": "350029", "title": "", "text": "a limited answer to an ethical problem. On its face, it is clear that it does not inhibit judicially un approved attorney subpoenas where the attorney/witness is not served “to provide evidence concerning a person who is represented by the attorney/witness.” Secondly, the interference, if any, with the prosecutorial function, is highly unobtrusive. As contemplated, the judicial approval is sought in an ex parte manner by the prosecutor. Considering the requirements contained in the United States Attorney’s internal guidelines for seeking attorney/witness subpoenas under PF 15 circumstances, it would appear that all relevant information is already readily available to the prosecutor for ex parte presentation to the district court. Lastly, there is no question that the problem which has given rise to PF 15 is a mounting one. Judging alone from the considerable legal literature which has emerged on this subject, see, ante, footnote 13, to say nothing of the cases, ante at 654, the subpoenaing of attorney/witnesses under PF 15 circumstances appears to present ethical concerns of a wide-spread nature. American Bar Association, Grand Jury Policy and Model Act (1977-1982), Grand Jury Principles, No. 29; American Bar Association, Reports with Recommendation to the House of Delegates, Report No. HID (February, 1986); Report of the Committee on Criminal Advocacy of the Association of the Bar of the City of New York, The Issuance of Subpoenas Upon Lawyers in Criminal Cases by State and Federal Prosecutors: A Call for Immediate Remedial Action, July 17, 1985. Furthermore, when we consider the admission by appellants to the effect that in the District of Massachusetts alone, from 50 to 100 attorney subpoenas per year have been served during the last four years under PF 15 circumstances, and we compare this figure to the criminal case load in that District of approximately 306 to 463 cases filed per year, the possibility arises that PF 15 situations could very well be present in from 10.7 to 32.6% of that District’s criminal cases, not an insignificant proportion. Our dissenting colleague expresses concern as to the possible effect that PF 15 might have on the grand jury’s “mission”" }, { "docid": "350007", "title": "", "text": "AMENDED PANEL OPINION TORRUELLA, Circuit Judge. This appeal presents a question of first impression which directly implicates the rule-making powers of the district courts, and indirectly, rights guaranteed by the Sixth Amendment of the Constitution. The precise point before us is whether a district court can adopt a local rule which requires prosecutors to seek prior judicial approval before serving a grand jury subpoena upon an attorney, for the purpose of obtaining evidence about the attorney’s clients. Background In early 1986 the Supreme Judicial Court of Massachusetts (SJC), at the prompting of the Massachusetts Bar Association, adopted an ethical rule known as Prosecu-torial Function 15 (“PF 15”), which states that: It is unprofessional conduct for a prosecutor to subpoena an attorney to a grand jury without prior judicial approval in circumstances where the prosecutor seeks to compel the attorney/witness to provide evidence concerning a person who is represented by the attorney/witness. Thereafter, on June 27, 1986, the United States District Court for Massachusetts specifically amended its Local Rules to include PF 15 as a rule of the District Court, effective July 1, 1986. The response of the federal prosecutorial establishment to PF 15 was the filing of the law suit which gives rise to this appeal. The United States and various of its prosecutors who are members of the Massachusetts bar, claim the invalidity of PF 15 both as a rule of the SJC and as a local rule of the District Court. The substance of the allegations are that PF 15 violates the Supremacy Clause of the Constitution because it allegedly conflicts with the Federal Rules of Criminal Procedure and federal substantive law, and because the local rule which adopted PF 15 exceeds the District Court’s rule-making powers. After a hearing the District Court on February 28, 1986 denied plaintiffs’ re quest for an injunction, holding that PF 15 was within the judiciary’s supervisory power over grand juries, was not violative of the Supremacy Clause, and did not imper-missibly interfere with federal prosecutorial responsibilities. On appeal plaintiffs-appellants claim: (1) that the District Court lacked the power to promulgate PF" }, { "docid": "5776960", "title": "", "text": "101st Cong., 2d Sess. 408 (1990) (Appendix 2), cited in Andrea F. McKenna, A Prosecutor’s Reconsideration of Rule 3.10, 53 U.Pitt.L.Rev. 489, 491 n. 5 (1992). See also United States v. Klubock, 832 F.2d 649, 658 (1st Cir.1986) (noting that, in the District of Massachusetts alone, from 50 to 100 attorney subpoenas per year were served by federal prosecutors from 1983 to 1986), vacated, 832 F.2d 664 (1st Cir.1987) (en banc by an equally divided court). . Several states, in addition to Rhode Island, adopted variations of the ABA’s Model Rule. See, e.g., Mass.Sup.Jud.Ct. Rule 3:08, PF 15 (adopted by United States District Court for Massachusetts), Tenn.Ct.C.P.R. & DR 7-103(C); N.H.R.P.C. 4.5; Va.Sup.Ct.R. 3A: 12(a) (adopted as procedural rather than ethical rule); and Pa. Rule of Prof.Conduct 3:10. New York, Illinois and the District of Columbia considered and rejected the rule. See 6 Laws.Man. on Prof.Conduct (ABA/BNA) 28, 29, 53, 55, 172, 175. Pennsylvania's rule, which pertained only to grand jury subpoenas, was struck down by the United States Court of Appeals for the Third Circuit as beyond the court's rule-making power. Baylson v. Disciplinary Board of the Supreme Court of Pennsylvania, 975 F.2d 102 (3d Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1578, 123 L.Ed.2d 147 (1993). . The case was originally brought in the United States District Court for Rhode Island, and subsequently transferred to the United States District Court for New Hampshire. . For a discussion of how PF 15 has fared in Massachusetts, see generally David Hoffman et at, Attorney Subpoenas and Massachusetts Rule PF 15, 95 Mass.L.Rev. (Summer 1989). . See, e.g., Model Code of Professional Responsibility DR 5-101(B), DR 5-102 (1980); Model Rules of Professional Conduct Rule 3.7(a) (1987) (prohibiting lawyer from acting as both advocate and witness whenever \"the lawyer is likely to be a necessary witness”). See also United States v. Diozzi, 807 F.2d 10, 12-13 (1st Cir.1986) (\"[A]t-tomeys [can]not serve the dual roles of defense counsel and sworn government witnesses in the same trial.”). .In United States v. Perry, 857 F.2d 1346, 1347 (9th Cir.1988), the Ninth Circuit noted that" }, { "docid": "12670184", "title": "", "text": "of Professional Responsibility means that code adopted by the highest court of the state, or commonwealth, as amended from time to time by that court, except as otherwise provided by specific rule of this Court after consideration of comments by representatives of bar associations within the state or commonwealth. . The supervisory power over grand juries is derived from several sources. Under 18 U.S. C.A. § 3331 (West 1985) and Fed.R.Crim.P. 6(a) a district court is given power to call a grand jury into existence; under Fed.R.Crim.P. 17(a), and 28 U.S.C.A. § 1826(a) (West Supp.1985), respectively, the district court is given the power to issue and the duty to enforce grand jury subpoenas. . The power and independence of the grand jury, and their relationship to PF 15, are discussed in Part II-A below. . In Pantojas, the Court of Appeals declined to impose on the district courts of this circuit a general requirement that before enforcement of a grand jury subpoena the government make a showing that evidence sought be relevant to a proper grand jury investigation. . In fact, PF 15 prescribes no standards at all to guide a court in making its determination. Although included in the original version submitted by the Massachusetts Bar Association to the SJC, the standards were ultimately deleted from the rule. See Memorandum of Defendants, App. D. . Plaintiffs have construed PF 15 to require judicial approval before issuance of a subpoena by the clerk, as provided in Fed.R.Crim.P. 17(a). But a prosecutor can still pick up a blank subpoena from the court, fill it in as permitted under Rule 17(a), and then seek court approval. PF 15 merely provides that \"[i]t is unprofessional conduct for a prosecutor to subpoena an attorney ... without prior judicial approval____” (emphasis supplied). By its terms, PF 15 simply requires approval at some time prior to service. . The Local Rules of this court are currently under revision. . But cf. United States v. Kelly, 550 F.Supp. 901 (D.Mass.1982) (assuming that Local Rule 5(d)(4)(B) incorporates by reference Massachusetts ethical rules relating to the Prosecution Function). ." }, { "docid": "16431545", "title": "", "text": "Geo. J. Legal Ethics 665, 686 n. 74 (1996). In 1985, mindful that forcing a lawyer to offer evidence against her client may sow seeds of mistrust and increase the incidence of conflicted interests, the DOJ introduced guidelines for the issuance of attorney subpoenas, including an internal preapproval process. See United States v. Perry, 857 F.2d 1346, 1347-48 (9th Cir.1988) (citing United States Attorneys’ Manual § 9—2.161(a) (July 18, 1985)). Responding to the prodding of bar leaders, the Massachusetts Supreme Judicial Court (the SJC) also took prophylactic action. It adopted an ethics rule, known as Prosecutorial Function 15 (PF 15), which stated that: It is unprofessional conduct for a prosecutor to subpoena an attorney to a grand jury without prior judicial approval in circumstances where the prosecutor seeks to compel the attorney/witness to provide evidence concerning a person who is represented by the attorney/witness. S.J.C. R. 3:07, PF 15 (effective Jan. 1, 1986). The United States District Court for the District of Massachusetts thereafter incorporated PF 15 into its local rules. PF 15 withstood the United States Attorney’s ensuing challenge by the narrowest of margins. See United States v. Klubock, 639 F.Supp. 117 (D.Mass.1986), aff'd, 832 F.2d 664 (1st Cir.1987) (equally divided en banc). Crucial to the district court’s holding was the fact that PF 15 imposed no substantive limitations on the right to issue subpoenas. See id. at 120 & n. 7, 124. For the next twelve years, PF 15 held sway in the District of Massachusetts. In the interim, the Rhode Island Supreme Court adopted a rule of conduct requiring prosecutors to obtain judicial approval pri- or to issuing attorney subpoenas. See R.I. Sup.Ct. Rules, Art. V., R. Prof'l Conduct 3.8 & cmt. (adopted Nov. 1, 1988). This rule closely resembled PF 15, with two significant deviations: its reach extended to subpoenas outside the grand jury context, and its text included a comment outlining substantive standards to be applied by a court in determining whether to sanction an attorney subpoena request. See id. Specifically, the comment suggested that judicial approbation should be withheld unless, inter alia, the information" }, { "docid": "343959", "title": "", "text": "virtually no leeway to courts to impose prior restraints on the issuance of grand jury subpoenas. Not only are the federal rules entirely without hint of any authority of this nature, federal case law points the other way. Unless the judges never deny a subpoena, they will almost certainly act more expansively than current legal doctrine allows. Infra. . All 15 of these prosecutorial function rules, which comprise SJC Rules 3:08, are incorporated as local rules of the United States District Court for the District of Massachusetts under Rule 5(d)(4)(B). . Except, perhaps, in very exceptional circumstances, the legal protection afforded the attorney-client relationship will be co-extensive with the common law attorney-client privilege. But see In Re Grand Jury Matters, 751 F.2d 13 (1st Cir.1984). The contours of that privilege will ordinarily determine the extent to which the attorney-client relationship is protected by law. Windows of vulnerability in the attorney-client relationship are not “gaps” in the privilege rules; they are areas where there is no privilege. . To the extent that PF 15 effects substantive change in the law of the attorney-client privilege, it is arguably beyond even the Supreme Court’s rule-making power. See Fed-R-Evid. 501 (the rules of privilege, in non-diversity cases, “shall be governed by the common law\"). See also 28 U.S.C. § 2076 (1982) (providing a \"fast track” method for congressional ratification of Supreme Court amendments to the Federal Rules of Evidence, save ”[a]ny such amendment creating, abolishing, or modifying a privilege,\" which can only be adopted by a full-blown act of Congress). BREYER, Circuit Judge, with whom SELYA, Circuit Judge, joins (dissenting). This case involves two rules. The first rule is a Massachusetts Supreme Judicial Court rule of professional conduct that says that it is “unprofessional” for a “prosecutor to subpoena an attorney to a grand jury without prior judicial approval” where the prosecutor “seeks to compel” testimony about a client. Mass.SJ.C. Rule 3:08, PF 15. The second rule is a federal district court local rule that cross-references the first rule. It says that [a]cts or omissions ... that violate the ethical requirements and rules concerning" }, { "docid": "350023", "title": "", "text": "limitations on judicial rule-making, especially the requirement that any local rule not conflict with the Federal Rules or Federal statute. Appellants argue specifically that PF 15 conflicts with Rule 17 of the Federal Rules of Criminal Procedure. Rule 17 of the Federal Rules of Criminal Procedure One of appellants’ primary attacks on PF 15 is their contention that “requiring prior judicial approval of grand jury subpoenas is inconsistent” with Rule 17 of the Fed.R. of Crim.P. Appellant’s Brief at p. 18. To the extent that this argument is directed at the concept that PF 15 requires judicial approval prior to the issuance of a grand jury subpoena, id. at pp. 18-23, such a view can only result from an erroneous reading of PF 15. Nothing in PF 15 in any way inhibits a prosecutor from seeking the issuance of a subpoena by the clerk of the court pursuant to Fed.R.Crim.P. Rule 17(a). Since PF 15 does not relate to the issuance of the subpoena, there is no conflict between the clerk’s ministerial authority to issue subpoenas under Fed.R.Crim.P. 17(a), and the duties imposed on the prosecutor under the provisions PF 15 regarding the service of subpoena. Clearly, the perceived problem which the language of PF 15 (“to subpoena an attorney”) seeks to control is the service of subpoenas on attorneys by prosecutors. As has been previously discussed, ante at 653-55, it is this action, the serving of an attorney with a grand jury subpoena, which triggers the various concerns that have given rise to the enactment of PF 15, i.e., the “chilling” of the attorney-client relationship, the implication of Sixth Amendment concerns, the creation of conflicting interests between an attorney and his/her client, and the possibility for adversarial abuse. Proceeding to the crux of appellants’ challenge, there is nothing in the express language of Rule 17 which specifically prohibits the ethical controls imposed upon prosecutors, qua members of the bar, which PF 15 establishes. In fact only Rule 17(d) and (e) are directly concerned with the serving of subpoenas, but this concern, as related to paragraph (d), deals with the" }, { "docid": "343955", "title": "", "text": "resolving the problem, only leads to additional ones. If PF 15 is read to empower a judge to require the prosecutor to make some kind of a “showing” of need or relevance in order for the subpoena to issue, then the rule is at odds with In re Grand Jury Proceedings (Hill), 786 F.2d 3 (1st Cir.1986), a case in which this court refused to adopt this requirement. See also id. at 5 n. 2 (noting that most other circuits have rejected the need and relevance test; citing cases). Even if “prior judicial approval” did not require any prosecutorial “showing,” PF 15 would still conflict with federal case law. It is well-settled law that a witness who is subpoenaed to testify before a grand jury is not entitled to the quashing of the subpoena in advance on the grounds of privilege, but must appear, testify, and invoke the privilege in response to particular questions. In re Certain Complaints Under Investigation, 783 F.2d 1488, 1518 (11th Cir.1986) (Campbell, C.J., sitting by designation) (collecting cases). The witness, moreover, bears the burden of proving each of the four elements of an attorney-client communication that render it privileged. United States v. Wilson, 798 F.2d 509, 512-13 (1st Cir.1986). Thus, PF 15’s apparent contemplation of an ex parte proceeding between judge and prosecutor — “it is unprofessional conduct for a prosecutor to subpoena an attorney without prior judicial approval” — would relieve the claimant of these burdens, substantially expanding the scope of the privilege. In short, it is difficult to imagine how PF 15 can operate meaningfully except as a substantive modification of the existing rules both of grand jury power and attorney-client privilege. In conclusion, because the inevitable tendency of PF 15 is to lead the judge into actions inconsistent with federal law, see supra, the rule cannot be dismissed as an innocuous “disciplinary” or procedural device. Either the judge will require the prosecutor to show the relevance of the subpoena, or will assess, in advance of the subpoena’s issuance, whether the attorney-client privilege applies. Both actions are impermissible under current law. Furthermore, the" }, { "docid": "16431544", "title": "", "text": "SELYA, Circuit Judge. This appeal tests the limits of a federal district court’s authority to promulgate local rules. The court below upheld a rule constraining the issuance of subpoenas seeking client-related information from lawyers in criminal cases. Because we find that the rule falls outside the permissible scope of local rulemaking authority, we reverse. I. BACKGROUND Before assaying a preliminary question of justiciability and addressing the controversy’s merits, we trace the origins of the challenged rule and chart the travel of the case. A. The Evolution of Local Rule 3.8(f). The 1980s witnessed a dramatic increase in the number of subpoenas served on defense attorneys by federal prosecutors. The reasons for this trend are difficult to pinpoint, but some commentators have linked it with heightened efforts to fight organized crime and drug-trafficking, new forfeiture laws, and an unprecedented expansion of the Department of Justice (DOJ). See 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 3.8:701, at 700 (Supp.1996); Frank O. Bowman, III, A Bludgeon by Any Other Name, 9 Geo. J. Legal Ethics 665, 686 n. 74 (1996). In 1985, mindful that forcing a lawyer to offer evidence against her client may sow seeds of mistrust and increase the incidence of conflicted interests, the DOJ introduced guidelines for the issuance of attorney subpoenas, including an internal preapproval process. See United States v. Perry, 857 F.2d 1346, 1347-48 (9th Cir.1988) (citing United States Attorneys’ Manual § 9—2.161(a) (July 18, 1985)). Responding to the prodding of bar leaders, the Massachusetts Supreme Judicial Court (the SJC) also took prophylactic action. It adopted an ethics rule, known as Prosecutorial Function 15 (PF 15), which stated that: It is unprofessional conduct for a prosecutor to subpoena an attorney to a grand jury without prior judicial approval in circumstances where the prosecutor seeks to compel the attorney/witness to provide evidence concerning a person who is represented by the attorney/witness. S.J.C. R. 3:07, PF 15 (effective Jan. 1, 1986). The United States District Court for the District of Massachusetts thereafter incorporated PF 15 into its local rules. PF 15 withstood the" }, { "docid": "350010", "title": "", "text": "L.Ed.2d 496 (1958). It is immaterial that its origin lies with a rule of the SJC. By its absorption into the local rules, first indirectly in the original version of Local Rule 5(d)(4)(B), and later by specifically including SJC Rule 3:08 (which contains PF 15) within the text of Local Rule 5(d)(4)(B)), PF 15 is as much federal law as if enacted initially by the district court. To that extent, the Supremacy Clause argument is clearly spurious. Nonetheless appellants press this claim against the possibility that a federal prosecutor, a member of the Massachusetts bar, may be theoretically vulnerable to being charged in the state disciplinary forum if he/she acts contrary to PF 15 in a jurisdiction other than Massachusetts, (for example, if plaintiff Dabrowski, a member of the Massachusetts bar, serves a subpoena in Connecticut, where he is an assistant United States attorney, without compliance with PF 15). If PF 15 is read literally, appellants’ fears, although somewhat farfetched, cannot be totally discounted. We are not free, however, to ignore the record in this case and the policy statements of those charged with administering PF 15. See Field v. Brown, 610 F.2d 981, 991 (D.C.Cir.), cert. denied, 446 U.S. 939, 100 S.Ct. 2160, 64 L.Ed.2d 792 (1979). As interpreted by defendant-appellee Klubock, Bar Counsel of the Massachusetts Board of Bar Overseers and the person charged with instituting all disciplinary proceedings in Massachusetts, PF 15 will not be applied against any federal prosecutor for any action taken extraterritorially. Furthermore, Klubock has stated that any enforcement proceedings dealing with alleged violation of ethical rules, including PF 15, would, as applied to federal prosecutors, be brought only in the District Court of Massachusetts. Thus, as presently interpreted and enforced by the Massachusetts authorities, federal prosecutors who are members of the Massachusetts bar are subject to PF 15 only for their actions within the District of Massachusetts, and, in such cases, through disciplinary action brought only in the federal forum. That forum also has before it the policy statements of the Massachusetts authorities, upon which we are relying for this decision. While such" }, { "docid": "350028", "title": "", "text": "any misinterpretation about this Court’s position regarding the issue before us, it goes without saying, that attorneys, just like all other persons, United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), are not above the law and are subject to its full application under appropriate circumstances. See United States v. Twomey, 806 F.2d 1136 (1st Cir.1986); United States v. Carbone, 798 F.2d 21 (1st Cir.1986); United States v. Nieves-Pacheco, 658 F.2d 14 (1st Cir.1981), cert. denied, 457 U.S. 1117, 102 S.Ct. 2927, 73 L.Ed.2d 1328 (1982). Attorneys are not, by virtue of such status, exempt from answering to subpoenas when properly served, including even when compliance has not been made with provisions such as PF 15. The consequence of non-compliance with PF 15 is to be resolved in different proceedings. Such noncompliance does not excuse disobedience to lawful process. Back on track, we find nothing in PF 15 to justify the triggering of the use of our supervisory powers. As indicated, PF 15 is closely worded in nature, and is a limited answer to an ethical problem. On its face, it is clear that it does not inhibit judicially un approved attorney subpoenas where the attorney/witness is not served “to provide evidence concerning a person who is represented by the attorney/witness.” Secondly, the interference, if any, with the prosecutorial function, is highly unobtrusive. As contemplated, the judicial approval is sought in an ex parte manner by the prosecutor. Considering the requirements contained in the United States Attorney’s internal guidelines for seeking attorney/witness subpoenas under PF 15 circumstances, it would appear that all relevant information is already readily available to the prosecutor for ex parte presentation to the district court. Lastly, there is no question that the problem which has given rise to PF 15 is a mounting one. Judging alone from the considerable legal literature which has emerged on this subject, see, ante, footnote 13, to say nothing of the cases, ante at 654, the subpoenaing of attorney/witnesses under PF 15 circumstances appears to present ethical concerns of a wide-spread nature. American Bar Association, Grand" }, { "docid": "343957", "title": "", "text": "new requirement that this type of grand jury subpoena routinely be justified in advance is an unprecedented burden on the grand jury’s powers, putting the prosecutor on the horns of a dilemma. For the prosecutor must decide, as a matter of strategy, whether to forego an attorney subpoena if he fears a judge may deny it (thus keeping relevant information from the grand jury), or to seek approval of a subpoena and risk the possibility of having to appeal the judge’s denial (thus possibly, in some instances, antagonizing the judge and/or delaying the investigation). Whether this result is “good” or “bad” as a matter of policy is not the point. It clearly involves the creation of new substantive privilege law of very significant consequence. It is not the sort of matter of detail a single district court is empowered to legislate under its local rule-making authority. I would, therefore, reverse the judgment below. . The rule provides in full: It is unprofessional conduct for a prosecutor to subpoena an attorney to a grand jury without prior judicial approval in circumstances where the prosecutor seeks to compel the attorney/witness to provide evidence concerning a person who is represented by the attorney/witness. PF 15 was promulgated pursuant to Fed.R. Crim.P. 57, which empowers a district court to make rules \"as to some matters of detail\" in areas not covered by the Federal Rules of Criminal Procedure. See Fed.R.Crim.P. 57 advisory committee notes. The general grant of rule-making power to federal courts is found in 28 U.S.C. § 2071 (1982): The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed by the Supreme Court. . It may be argued that these judges, after all, are not lawless people, and that they can be expected to carry out their responsibilities under PF 15 under the constraints of the law that guide them in any other judicial enterprise. As discussed below, however, existing law gives" }, { "docid": "343958", "title": "", "text": "prior judicial approval in circumstances where the prosecutor seeks to compel the attorney/witness to provide evidence concerning a person who is represented by the attorney/witness. PF 15 was promulgated pursuant to Fed.R. Crim.P. 57, which empowers a district court to make rules \"as to some matters of detail\" in areas not covered by the Federal Rules of Criminal Procedure. See Fed.R.Crim.P. 57 advisory committee notes. The general grant of rule-making power to federal courts is found in 28 U.S.C. § 2071 (1982): The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed by the Supreme Court. . It may be argued that these judges, after all, are not lawless people, and that they can be expected to carry out their responsibilities under PF 15 under the constraints of the law that guide them in any other judicial enterprise. As discussed below, however, existing law gives virtually no leeway to courts to impose prior restraints on the issuance of grand jury subpoenas. Not only are the federal rules entirely without hint of any authority of this nature, federal case law points the other way. Unless the judges never deny a subpoena, they will almost certainly act more expansively than current legal doctrine allows. Infra. . All 15 of these prosecutorial function rules, which comprise SJC Rules 3:08, are incorporated as local rules of the United States District Court for the District of Massachusetts under Rule 5(d)(4)(B). . Except, perhaps, in very exceptional circumstances, the legal protection afforded the attorney-client relationship will be co-extensive with the common law attorney-client privilege. But see In Re Grand Jury Matters, 751 F.2d 13 (1st Cir.1984). The contours of that privilege will ordinarily determine the extent to which the attorney-client relationship is protected by law. Windows of vulnerability in the attorney-client relationship are not “gaps” in the privilege rules; they are areas where there is no privilege. . To the extent that PF 15 effects substantive" } ]

[ { "docid": "399997", "title": "", "text": "Mr. Smith, I am doing all of the criminal work for the Middle District of Alabama now. I cannot have lawyers set the terms of my court to suit themselves. I explained that to Mr. Garland, he accepted your money, he accepted your case on that basis, and for him to come in on the day of the trial when we have put everything else off to take care of your trial, is inexcusable, and the case will not be continued, we will go to trial. If Mr. Garland gets here he can participate, if he can’t Mr. Nuckolls will represent you. You are entitled to a lawyer. You are entitled to have Mr. Garland acquaint his partner, or whomever may sit for him, with your case, but you are not entitled to continue the case simply because Mr. Garland gets himself so involved that he can’t be in this court. MR. SMITH: Yes, thank you. The disposition of motions for continuance is vested in the sound discretion of the trial court. Its ruling will not be disturbed on appeal, except upon a clear showing of abuse of its discretion. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); United States v. Uptain, 531 F.2d 1281 (5th Cir. 1976). Whether an abuse of discretion has occurred will be decided on a “case by case basis in light of the circumstances presented.” Id. at 1285. In reaching a decision we examine the reasons for the continuance given at the time the request was denied. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); McKinney v. Wainwright, 488 F.2d 28 (5th Cir.), cert. denied, 416 U.S. 973, 94 S.Ct. 1998, 40 L.Ed.2d 562 (1974). Several additional facts are pertinent to our consideration of the trial judge’s exercise of discretion. In this case there were eighteen defendants, sixteen of whom were ready to proceed when the continuance was requested. The forty-seven witnesses used by the government had been subpoenaed and were then in court or were available to testify. Garland and Nuckolls are partners in" } ]

[ { "docid": "375834", "title": "", "text": ". . . .” 386 U.S. at 23, 87 S.Ct. at 827—28. The right of a defendant to be tried under an indictment presented solely by a grand jury is one such right. Ex Parte Bain excluded the notion of a non-prejudicial amendment to the indictment, and since that time, the concept of harmless error has not. been applied to amendments. Gaither v. United States, 134 U.S.App.D.C. 154, 413 F.2d 1061 (1969). Because the trial court committed plain error in instructing the jury with respect to the only charge of which he was found guilty, we reverse as to McFarland. Denial of Continuance Appellant Carroll complains of prejudice resulting from the trial court’s denial of his motions for continuance. Disposition of such motions is vested in the sound discretion of the trial court. Its ruling will not be disturbed on appeal, except upon a clear showing of abuse. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); United States v. Uptain, 531 F.2d 1281 (5th Cir. 1976); United States v. Moriarty, 497 F.2d 486 (5th Cir. 1974). Whether such abuse will be found is to be decided on a “case by case basis in light of the circumstances presented.” 531 F.2d at 1285. The reviewing court will especially examine the reasons for continuance given at the time the request is denied. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); McKinney v. Wainwright, 488 F.2d 28 (5th Cir.), cert. denied, 416 U.S. 973, 94 S.Ct. 1998, 40 L.Ed.2d 562 (1974). Two grounds were asserted by Carroll to support his motion for continuance: insufficient time for full and adequate preparation of the defense, and a conflict in the commitments of Carroll’s attorney, who was scheduled to try a case in a Colorado state court on an unrelated matter the same day appellant’s trial was to have begun in Dallas. This court has established several factors to be considered in evaluating claims of inadequate preparation time. Some of them include the amount of time available for preparation, the likelihood of prejudice resulting from denial," }, { "docid": "3386576", "title": "", "text": "settled that the decision to grant a continuance lies within the sound discretion of the trial judge and is subject to reversal only for an abuse of that discretion. United States v. Webster, 734 F.2d 1048 (5th Cir.), cert. denied, 469 U.S. 1073, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). Whether a continuance was properly denied depends on the circumstances of the case. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). The relevant circumstances include the amount of time available, the defendant’s role in shortening the time needed, the likelihood of prejudice from a denial, and the availability of discovery from the prosecution. See United States v. McDonald, 837 F.2d 1287, 1289 (5th Cir.1988); United States v. Garmany, 762 F.2d 929, 936 (11th Cir.1985), cert. denied, 474 U.S. 1062, 106 S.Ct. 811, 88 L.Ed.2d 785 (1986). Judged by these factors, it cannot be said that the trial court abused its discretion in denying the continuance. First, the defendants did not do what they could to shorten the time needed to review the documents. They spent only a fraction of the time allotted and declined the trial judge's offer to continue the trial for the rest of the day. Moreover, given that the Government was able to identify overnight several documents that it wished to use to cross-examine Harrell, it seems clear that the defense could have made profitable use of time offered. Second, the defendants have shown no prejudice from the denial of the continuance. All of the information in the documents was either 1) previously known or available to Harrell, 2) available from other sources known to the defendants, 3) irrelevant to the case, 4) of no assistance to the defense, or 5) cumula tive of other testimony. Accordingly, the trial judge did not abuse his discretion in denying the continuance. C. Evidence of a Prior Bad Act The defendants next argue that the trial court erred by improperly admitting evidence of an extrinsic act which tended to show that Morten Hopkins and John Harrell acted with intent to injure the savings" }, { "docid": "16648592", "title": "", "text": "the district court the substance of his surrebuttal testimony. This denied the district court the opportunity to determine whether the surre-buttal could discredit the government’s rebuttal testimony. See Moody 903 F.2d at 331. Although Judge Gex, the district court judge, clearly erred in stating that “[surre-buttal] does not exist ... in this court, never has;” the district court did not abuse its discretion in denying Alford surrebuttal in this ease. B. Denial of Continuance Alford also challenges the district court’s denial of his motion for continuance. “The grant or denial of a continuance is within the sound discretion of the trial court, and will be disturbed on appeal only for abuse of discretion.” United States v. Kelly, 973 F.2d, 1145, 1147-48 (5th Cir.1992). Alford must demonstrate an abuse of discretion resulting in serious prejudice. See United States v. Webster, 734 F.2d 1048, 1056 (5th Cir.), cert. denied, 469 U.S. 1073, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). On August 7, 1991, Alford appeared for arraignment represented by his retained counsel George Bloss. The parties were informed at that time that trial would commence on February 10, 1992. On October 31, 1991, Bloss moved to withdraw because Alford had failed pay him for his services. At the hearing on the motion to withdraw, the government stated that this was a rather complex case and expressed concern that a new lawyer might require a continuance to prepare for trial. The government also stated that Bloss had hired a private investigator and had completed discovery. The district court, because it was not inclined to bring in a new attorney, appointed Bloss as counsel for Alford. On December 10, 1991, the district court granted Bloss’ motion to withdraw as appointed counsel and appointed as substitute counsel Michael Crosby. The district court appointed Crosby substitute counsel only after Crosby affirmatively represented that he was familiar with the general circumstances and nature of Alford’s case. On February 4, 1992 the trial was continued until March 2, 1992, in response to a joint motion by the government and Alford based on Crosby’s inability to prepare adequately for" }, { "docid": "22100673", "title": "", "text": "panel retains appellate jurisdiction over the matter in the event either party is aggrieved by the trial court’s ruling. See Bernal-Obeso, 989 F.2d at 337. 6. Whether the District Court Abused Its Discretion in Other Rulings The district court ordered the government to provide Brady material fourteen days prior to trial and Jencks material seven days prior. Less then two weeks before trial, the defense sought a eontinu- anee due to the government’s alleged late filing of large amounts of disclosure and the alleged failure to provide certain Brady material; at that time, the district court refused to order disclosure of Brady material and denied the continuance motion. The government turned over notes or reports of debriefings of the co-conspirator witnesses on the first day of trial, relying on the Jencks Act as justification for the late disclosures. At trial, defense counsel objected to Mario Eseareega’s testimony implicating Alvarez because it was markedly different from a report disclosed to the defense that was ostensibly generated from Escarcega’s pre-trial interviews. While it overruled the objection, the court did grant Alvarez additional time to prepare for cross-examination in light of this new testimony. Finally, during the course of trial, the court ruled that rough notes taken by government agents during interviews of prospective witnesses would not constitute Jencks material unless they were adopted by the interviewees, but the court stated that the notes “could be discoverable” under Jencks if and when the agent who interviewed the witness testified. Alvarez makes several arguments related to these discovery issues. He asserts that prior statements of the witnesses who testified against him, along with government agents’ notes of discussions with the witnesses prior to trial, constitute Brady and Jencks Act material that should have been disclosed to the defense. Alvarez claims that he had a right to disclosure of Brady material sufficiently in advance of trial to be useful to the defense and that it was error not to order early disclosure of the reports of the witnesses’ statements because Brady trumps Jencks. Alvarez also argues the trial court erred under Brady and Jencks in" }, { "docid": "2474873", "title": "", "text": "counsel in a timely manner. We disagree. Womack’s attorney admittedly knew that the government had placed copies of all discovery material in the federal Public Defender’s office so that counsel for all 13 indicted codefendants could have access to them. Moreover, when Womack’s attorney argued on the day of jury selection that he had not seen the materials because of some misunderstanding with the Public Defender’s office, the district court granted the defense a one-week continuance to review the materials and further prepare for trial. Even if we were to assume that Wom-ack’s counsel should bear none of the blame for failing to obtain the discovery materials, which we do not, Womack fails to show any discovery violation on the government’s part. The Jencks Act, 18 U.S.C. § 3500, requires that, after a government witness has testified, the government must produce statements made by that witness. Here, the government gave Womack all Jencks Act statements one week before trial. Likewise, Womack fails to show how the government violated the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), when the defense had all discovery materials at least one week prior to trial and Womack has not alleged that any earlier production of the documents would have “enabled [him] to create a reasonable doubt that did not otherwise exist,” United States v. Bledsoe, 674 F.2d 647, 670 (8th Cir.), cert. denied sub nom. Phillips v. United States, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982). Womack next argues that the district court erroneously admitted a packet of crack cocaine and a gun that the government had obtained through an allegedly unconstitutional search conducted by a St. Paul police officer after he had arrested Womack in September 1990 for driving with an expired license. At trial, Womack failed to object to the cocaine packet, and therefore he may not raise its admission as a trial error on appeal. United States v. Trent, 949 F.2d 998, 999 (8th Cir.1991), cert." }, { "docid": "15992908", "title": "", "text": "deny continuances. See United States v. Brand, 80 F.3d 560, 564 (1st Cir.1996). A district court’s decision stands unless it is a “manifest abuse of discretion.” United States v. Devin, 918 F.2d 280, 291 (1st Cir.1990) (denying mid-trial continuance) (citing Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983)). That discretion is nonetheless limited by the defendants’ constitutional rights to effective assistance of counsel and to the testimony of defense witnesses. United States v. Soldevila-Lopez, 17 F.3d 480, 487 (1st Cir.1994). Among the factors to be considered in reviewing a denial of a motion for a continuance are the amount of time necessary for trial preparation, the amount of time actually available for preparation, the defendant’s diligence, the inconvenience to the court and other parties, the likely utility of a continuance, and any unfair prejudice caused by the denial. United States v. Saccoccia, 58 F.3d 754, 770 (1st Cir.1995), cert. denied, 517 U.S. 1105, 116 S.Ct. 1322, 134 L.Ed.2d 474 (1996); Soldevila-Lopez, 17 F.3d at 488. The defendants were arrested and arraigned on November 24, 1998. Soon thereafter (it is not clear exactly when), the defendants were provided with copies of most of the FBI surveillance tapes. Defendants were indicted on December 11, 1998. The district court held a status conference on January 5, 1999, at which time the trial date was set for February 3, 1999. Ultimately, although a jury was impaneled on February 3, opening arguments and the presentation of evidence was postponed until February 8 to accommodate a personal request by Orlando-Figueroa’s attorney. At the status conference, the court ordered the government to turn over all Brady and Giglio materials by January 14, 1999, all transcripts of the audio tapes by January 15, 1999, and all Jencks Act discovery materials, including grand jury minutes, by January 22, 1999. The court also ordered the government to file a written Fed.R.Crim.P. 12(d)(2) designation of evidence by January 8,1999. The defendants’ main argument is that on January 13, 1999, the government overwhelmed them with 2,000 pages of documents, 19 tapes and transcripts, and 2 video" }, { "docid": "11830041", "title": "", "text": "denial of a requested continuance for more preparation, (2) allowing the Government to reopen its case in chief, and (3) the authorization for the Government to present a rebuttal witness. Defendant concedes that “[pjerhaps no one of the alleged errors considered by itself can be regarded as sufficiently prejudicial to warrant reversal.” (Emphasis defendant’s.) We have carefully considered the defendant’s various claims individually and in combination. In our view none constitutes trial error and their cumulative effect did not deny him a fair trial. The court did not err in denying a continuance. Defendant was arrested on April 7, 1975. State charges against him were later dismissed and he was indicted by the federal grand jury on September 19, 1975. Counsel was appointed for him on the afternoon of Monday, September 22; he was arraigned the same day and trial was set for the following Monday, September 29. On the trial date, the defendant filed a written motion for a continuance asking additional time to prepare for trial. He argued that he had only six days to prepare, compared with the Government’s five months, and still had not reviewed the preliminary hearing testimony of a police offi cer nor located Ronnie Young — the man whom the defendant accused of firing the weapon in the Colonial Bar and placing the weapon in the car. Defendant concedes, however, that the Government fully disclosed the file of its case and complied with discovery requests. The Government produced Mr. Young to be interviewed by defendant’s counsel and made available Jencks material relating to its non-police witnesses. The grant or denial of a continuance is a matter within the discretion of the trial court, and absent a clear abuse of that discretion the trial court’s ruling will not be disturbed. United States v. Schrenzel, 462 F.2d 765, 772 (8th Cir.), cert.denied, 409 U.S. 984, 93 S.Ct. 325, 34 L.Ed.2d 248 (1972); United States v. Leach, 429 F.2d 956, 963 (8th Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971). To be sure, six days is little time to prepare" }, { "docid": "3386575", "title": "", "text": "the Government was not in any way responsible for their belated discovery. Second, the district court found that Harrell already had or could readily have obtained many of the documents, since they were correspondence either from him or to him, or other documents that he had previously read or prepared. Third, the district court found that much of the rest of the material was not relevant or was only collaterally relevant. Fourth, the court found that the documents that Harrell would have introduced contained evidence that was available from other witnesses, or that the documents would have been of no help to Harrell’s defense. Finally, the court found that Harrell did nothing to try to mitigate any possible prejudice. Harrell’s counsel reviewed the documents for less than an hour instead of the two days offered by the court, proceeded to question Harrell before examining the documents, and declined the court’s invitation to reopen direct examination of Harrell to permit him to explain the documents that the Government intended to use on cross-examination. It is well settled that the decision to grant a continuance lies within the sound discretion of the trial judge and is subject to reversal only for an abuse of that discretion. United States v. Webster, 734 F.2d 1048 (5th Cir.), cert. denied, 469 U.S. 1073, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). Whether a continuance was properly denied depends on the circumstances of the case. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). The relevant circumstances include the amount of time available, the defendant’s role in shortening the time needed, the likelihood of prejudice from a denial, and the availability of discovery from the prosecution. See United States v. McDonald, 837 F.2d 1287, 1289 (5th Cir.1988); United States v. Garmany, 762 F.2d 929, 936 (11th Cir.1985), cert. denied, 474 U.S. 1062, 106 S.Ct. 811, 88 L.Ed.2d 785 (1986). Judged by these factors, it cannot be said that the trial court abused its discretion in denying the continuance. First, the defendants did not do what they could to shorten the time" }, { "docid": "16648591", "title": "", "text": "Alford’s testimony, the government called an auditor who testified that during an audit of Alford’s previous company he discovered inflated invoicing. The government then called another witness who testified that his father’s estate had been overbilled by Alford’s previous company and that the audit resulted in the estate receiving credits for the payments on the overbillings. Alford argues that the information introduced by the government’s rebuttal witnesses was extremely prejudicial. Alford, however, during cross-examination had the opportunity to attack the credibility of the auditor and the witness whose father’s estate had been overbilled. For example, Alford, himself, states that on cross-examination the auditor admitted that if Alford were afforded the opportunity, he could possibly clarify questions the auditor had about the audit. Hence, the credibility of the government’s rebuttal witnesses was clearly before the jury. Alford further argues that the district court’s practice of never allowing surrebuttal allowed the government to go into extrinsic matters on rebuttal knowing that Alford would be denied any opportunity to refute the evidence. Alford, however, failed to proffer to the district court the substance of his surrebuttal testimony. This denied the district court the opportunity to determine whether the surre-buttal could discredit the government’s rebuttal testimony. See Moody 903 F.2d at 331. Although Judge Gex, the district court judge, clearly erred in stating that “[surre-buttal] does not exist ... in this court, never has;” the district court did not abuse its discretion in denying Alford surrebuttal in this ease. B. Denial of Continuance Alford also challenges the district court’s denial of his motion for continuance. “The grant or denial of a continuance is within the sound discretion of the trial court, and will be disturbed on appeal only for abuse of discretion.” United States v. Kelly, 973 F.2d, 1145, 1147-48 (5th Cir.1992). Alford must demonstrate an abuse of discretion resulting in serious prejudice. See United States v. Webster, 734 F.2d 1048, 1056 (5th Cir.), cert. denied, 469 U.S. 1073, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). On August 7, 1991, Alford appeared for arraignment represented by his retained counsel George Bloss. The parties were" }, { "docid": "23306621", "title": "", "text": "of high rates of return. Nor were the prior acts too remote in time. Given the similarity and relevance of the offenses, we are not troubled by the fact that they occurred seven and eight years earlier. This circuit has not adopted a bright line rule concerning remoteness in time, Spillone, 879 F.2d at 519, and, where the prior acts were similar to those charged, previous decisions have upheld admission of evidence of acts up to twelve years old. See United States v. Ross, 886 F.2d 264, 267 (9th Cir.1989) (acts occurring twelve years ago not too remote), cert. denied, 494 U.S. 1083, 110 S.Ct. 1818, 108 L.Ed.2d 947 (1990). As to Mew’s claim that the court below failed to apply Rule 403, we note that the court specifically found that the probative value of the evidence “outweigh[ed] any prejudice which may be present.” This argument is therefore meritless as well. CONTINUANCE Mew also contends that the district court erred in denying his request for a continuance. He asserts that he lacked time to prepare an adequate defense, given the massive production of exhibits and documents no more than 11 or 12 days prior to trial. This lack of time, and the case’s corn-plexity and his pre-trial detention, assertedly deprived him of a fair trial. We review a trial court’s ruling on a request for a continuance under an abuse of discretion standard. It is settled that we will reverse only if the decision is “arbitrary and unreasonable.” United States v. Tham, 960 F.2d 1391, 1396 (9th Cir.1991). Although there was a coneededly large volume of materials produced by the government in this case, the defendants were kept informed of this fact by three separate notices from the government. In addition, it provided an exhibit list two weeks prior to trial. Jencks materials were provided ten days before the first witness testified. See Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). Furthermore, as the court recognized, a continuance would greatly have inconvenienced the government, the court, and out-of-state witnesses under subpoena. Nor has Mew" }, { "docid": "3056149", "title": "", "text": "95 S.Ct. 1149, 43 L.Ed.2d 415 (1975); United States v. Matos-Peralta, 691 F.Supp. 780 (S.D.N.Y.1988). Due process requires only that a defendant receive such information before it is too late for him to make beneficial use of it at trial. United States v. Olson, 697 F.2d 273, 275 (8th Cir.1983); Shoher, 555 F.Supp. at 352 (accused to receive Brady material in time to permit effective “evaluation, preparation, and presentation at trial”) (quoting United States v. Deutsch, 373 F.Supp. 289, 290 (S.D.N.Y.1974)). Accordingly, Brady “impeachment” information is properly disclosed when the witness is called to testify at trial. See United States v. Higgs, 713 F.2d 39, 44 (3d Cir.1983), cert. denied, 464 U.S. 1048, 104 S.Ct. 725, 79 L.Ed.2d 185 (1984) (evidence going to the credibility of government’s witness may be disclosed on day witness testifies); United States v. Biaggi, 675 F.Supp. 790, 812 (S.D.N.Y.1987) (Brady information bearing on witness credibility to be turned over at same time as other 18 U.S.C. § 3500 materials); United States v. Abrams, 539 F.Supp. 378, 390 (S.D.N.Y.1982) (Brady does not require the government to disclose information pertaining to the credibility of a witness before that witness testifies). Following the usual practice in this District, the government has agreed to make impeachment information available to the defense at the same time as Jencks Act material, i.e., “one day prior to the day the witness is called to testify on direct examination,” or, if additional time is reasonably required to review such material, sufficiently in advance of the witness’ testimony so as to avoid any delay at trial. United States v. Gutierrez-Flores, 1994 WL 558034, at *3 (S.D.N.Y. Oct. 11, 1994); see also Biaggi, 675 F.Supp. at 812 (Brady information bearing on witness credibility to be turned over at same time as Jencks Act materials). This practice will allow defense counsel adequate time to prepare for cross-examination of government witnesses as they testify at trial. The Court accepts the government’s representation that it will provide timely disclosure if any Brady material comes to light. D. Prior Offenses Ramos requests disclosure of evidence of all other crimes," }, { "docid": "8138318", "title": "", "text": "committed to the sound discretion of the trial judge, and the ruling will not be disturbed unless there is a clear showing of abuse of discretion. United States v. Darby, 744 F.2d 1508, 1521 (11th Cir.1984), cert. denied, 471 U.S. 1100, 105 S.Ct. 2322, 85 L.Ed.2d 841 (1985). 2. Material Discovery Under the Jencks Act Under the Jencks Act, the government was not required to turn over witness statements during the suppression hearing. The Jencks Act provides in pertinent part: In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government ivitness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case. The Jencks Act, 18 U.S.C. § 3500(a) (emphasis added). There is not a Jencks Act basis for requesting such materials prior to trial to avoid surprise. In United States v. Murphy, 569 F.2d 771 (3d Cir.), cert. denied, 435 U.S. 955, 98 S.Ct. 1588, 55 L.Ed.2d 807 (1978), the Third Circuit wrote “[t]he blunt command of the statute together with the unequivocal legislative history has led to unbroken precedent in the Courts of Appeals denying to district courts the power to compel production of the statements of government witnesses until conclusion of direct examination at the trial. Trial in this context means a proceeding being conducted for the purpose of determining guilt or innocence.” As in the instant case, Mmphy involved a pre-trial evidentiary hearing resulting from a motion to suppress. Murphy noted the same unanimous authority in the related context of preliminary probable cause hearings. The court was careful to point out that the result of Murphy “in no way impairs the government’s constitutional obligations under Brady v. Maryland.” Id. at 774. As discussed above, the appellants did not assert a viable Brady claim. The appellants’ argument that the government failed to produce material discovery after demand necessitating a reversal of defendant Williams’ conviction is without merit. 3.Severance and Misjoinder of" }, { "docid": "6420775", "title": "", "text": "it surfaces. Furthermore, the Government has agreed to turn over Jencks Act material seven days prior to the commencement of trial and to retain any rough notes and drafts taken and prepared by investigating officers and agents. Finally, the Government has pledged to make available materials bearing on the credibility of witnesses, as well as to give notice of its intention to introduce “prior crimes” evidence against defendants, in time so that the defendants will be able to prepare their defenses. The Government’s position on each of these points is reasonable under the Jencks Act and the Brady doctrine and is amply supported by the case law. See, e.g., Palermo v. United States, 360 U.S. 343, 350, 79 S.Ct. 1217, 1223, 3 L.Ed.2d 1287 (1959) (“One of the most important motive forces behind the enactment of this legislation was the fear that an expansive reading of Jencks would compel the undiscriminating production of agent’s summaries of interviews regardless of their character or completeness.”) United States v. Higgs, 713 F.2d 39, 44 (3d Cir.1983), cert. denied, 464 U.S. 1048, 104 S.Ct. 725, 79 L.Ed.2d 185 (1984) (evidence going to credibility of Government’s witness may be disclosed on day witness testifies); United States v. Murphy, 569 F.2d 771, 773 (3d Cir.), cert. denied, 435 U.S. 955, 98 S.Ct. 1588, 55 L.Ed.2d 807 (1978) (Jencks Act material need not be disclosed until witness testifies at trial); United States v. Miller, 520 F.2d 1208, 1211 (9th Cir.1975) (Government need not disclose prior to opening statement evidence of defendant having committed prior similar criminal acts). To the extent defendants seek disclosure of these types of material well in advance of the time the Government has offered to make the evidence available, the motions are denied. Certain of the defendants seek a list of the Government’s actual or potential trial witnesses. The Third Circuit does not require that the Government divulge its trial witnesses and defendants herein have presented no compelling justification for departing from this settled principle. See DiPasquale, 740 F.2d at 1294; United States v. Mitchell, 540 F.2d 1163, 1166 (3d Cir.1976), cert. denied," }, { "docid": "14321353", "title": "", "text": "the reports, notes and transcripts, withholding only small portions it found nondis-coverable. As new material was disclosed, the court, denying defense motions for mistrial and to strike the witness’ testimony, provided the defense an opportunity for a continuance, recess, or to recall the witness for further cross-examination, noting that this was the procedure contemplated by the Jencks Act. See 18 U.S.C. § 3500(c). Defense counsel, reviewing the new information, on each occasion chose to proceed with cross-examining the witness, recalling none for additional cross-examination. Assuming, without deciding, that the belatedly disclosed information is properly considered to be within Jencks, we find there was material compliance with the Act. The Jencks Act by its terms limits disclosure of the disputed information until after a witness’ direct testimony. 18 U.S.C. § 3500(a). The district court then, “in its discretion, upon application of [the] defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial.” 18 U.S.C. § 3500(c). Defendants made no request for a recess and in fact consistently rejected repeated offers by the court to take whatever time counsel felt was necessary to utilize the new material to full advantage. Moreover, with respect to the agents’ rough interview notes the defendants were on notice well in advance of trial that the government intended to resist production yet nothing in the record shows they challenged this position prior to trial. The defendants claim that, notwithstanding the narrower post-cross-examination window for discovery provided in the Jencks Act, they are entitled to a remedy because of the violation of a discovery order requiring production of all Jencks material one week prior to trial. We disagree. “The lower court's handling of a matter of non-compliance with discovery orders is within its discretion, and will only be overturned for an abuse of that discretion.” United States v. Samalot Perez, 767 F.2d 1, 4 (1st Cir.1985) (citing United States v. Richman, 600 F.2d 286, 292 (1st Cir.1979); United States v. Gladney, 563" }, { "docid": "7219931", "title": "", "text": "and secondly, whether prejudice followed from the breach. Id. at 326-27. The defendant has a heavy burden to overcome the presumption of effective counsel. United States v. Blue Thunder, 604 F.2d 550, 554 (8th Cir.), cert. denied, 444 U.S. 902, 100 S.Ct. 215, 62 L.Ed.2d 139 (1979). In addition to the issue of ineffective assistance of counsel, there exists the issue of whether the trial court abused its discretion in denying a continuance. A denial of a continuance will be reversible error only if there is a clear abuse of discretion. United States v. Reed, 658 F.2d 624, 627 (8th Cir. 1981). To determine whether the trial court abused its discretion, the reviewing court will consider factors including counsel’s time for preparation, conduct of counsel at trial, and presence of prejudice in the record. United States v. Campbell, 609 F.2d 922 (8th Cir. 1979), cert. denied, 445 U.S. 918, 100 S.Ct. 1282, 63 L.Ed.2d 604 (1980). In the context of this case, grounded either on ineffective assistance of counsel or abuse of discretion in denying a continuance, the critical issue is whether the appellant was materially prejudiced by the trial court’s failure to grant a continuance in order for the appellant’s counsel to further prepare the case. After carefully reviewing the record, we cannot find such prejudice. The court granted a continuance at the commencement of the trial during which counsel and his investigator were able to interview all of prosecution’s witnesses. In addition, defense counsel was able to present seven of the twenty witnesses subpoenaed, interviewing all these witnesses during the midtrial recess. During the trial itself, the trial court found that the defendant received “able and effective assistance of defense counsel.” The record shows that defense counsel provided an effective opening statement prior to introducing the defense witnesses and presented witnesses supporting appellant’s argument that Dee-gan initiated the fight. Finally, appellant fails to show what new evidence would have been introduced had defense counsel had further time to investigate. See Beran v. United States, supra, 580 F.2d at 327. Further evidence appears only cumulative to that evidence already" }, { "docid": "23269291", "title": "", "text": "record the testimony of the witness.” 18 U.S.C. § 3500(d). Unlike Rule 16 and the Jencks Act, however, Brady “is not a discovery rule, but a rule of fairness and minimum prosecutorial obligation.” United States v. Beasley, 576 F.2d 626, 630 (5th Cir.1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979). There can be no violation of Brady unless the government’s nondisclosure infringes the defendant’s fair trial right. Higgs, 713 F.2d at 42, 43. To constitute a Brady violation, the nondisclosure must do more than impede the defendant’s ability to prepare for trial; it must adversely affect the court’s ability to reach a just conclusion, to the prejudice of the defendant. United States v. Campagnuolo, 592 F.2d 852, 861-62 (5th Cir.1979). “No denial of due process occurs if Brady material is disclosed in time for its effective use at trial.” Higgs, 713 F.2d at 44; see also Kaplan, 554 F.2d at 580. Moreover, “the government is not obliged under Brady to furnish a defendant with information which he already has or, with any reasonable diligence, he can obtain himself.” Campagnuolo, 592 F.2d at 861. Here, because the defendant suffered no prejudice from the government’s failure to disclose the report, there was no Brady violation. Defense counsel’s independent discovery of the statement — fortuitous though it was — negates any argument that the defendant was deprived of rights assured by the Constitution. Absent a showing of prejudice, we conclude that the district court abused its discretion in basing its preclusion order on a violation of Brady. Our finding that the district court abused its discretion, however, does not mean that we approve of the government’s conduct in this case. The prosecution’s deliberate disobedience of the district court’s disclosure order was not only an affront to the court’s integrity, but it also exposes a lacuna in existing case law. In defense of its noncompliance, the government argued: Defendant was not entitled to this information before trial because it is not exculpatory but could be used only to impeach the witness’ testimony and thus is subject to disclosure under" }, { "docid": "5925511", "title": "", "text": "recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement”). Cuevas’s argument is foreclosed by United States v. Bobadilla-Lopez, 954 F.2d 519 (9th Cir.1992), cert. denied, 506 U.S. 1056, 113 S.Ct. 987, 122 L.Ed.2d 139 (1993). In Bobadilla-Lopez, we held that a Border Patrol officer’s recorded radio transmissions made during surveillance were not discoverable under the Jencks Act: The border patrol agent’s radio transmissions share the same rough, incomplete nature as notes hurriedly jotted during surveillance---- [T]he spotty, impressionistic and incomplete on-site transmissions of the agent in this case do not amount to the same kind of narrative ‘statement’ of a witness producible under the Jencks Act---- [Sjurveillance transmissions ... [do] not become ‘statements’ under section 3500(e)(2) simply because they were recorded. Id. at 522-23. As in Bobadilla-Lopez, Smith’s surveillance notes did not become Jencks Act statements simply because they were recorded. The district court did not err in denying Cuevas’ motion for disclosure of tape recorded surveillance notes. C. Motion for a New Trial Cuevas appeals from the district court’s denial of his motion for a new trial on the grounds of newly discovered exculpatory evidence improperly withheld by the government. Specifically, Cuevas contends that the government improperly redacted portions of police reports that it was required to disclose under Brady and the Jencks Act. He also contends that the government lied about not knowing the whereabouts of Jose Herrera, a potential material witness for the defense. The district court’s denial of a motion for new trial is reviewed for an abuse of discretion. United States v. Lopez, 803 F.2d 969 (9th Cir.1986), cert. denied, 481 U.S. 1030, 107 S.Ct. 1958, 95 L.Ed.2d 530 (1987). 1. Improper Redactions After the conclusion of the trial, the defense discovered that the government had surreptitiously redacted portions of police reports it disclosed in pretrial discovery. The defense discovered this because defense counsel happened to receive the same report but unredacted in the course of representing an unrelated defendant in a separate matter. Before" }, { "docid": "5017882", "title": "", "text": "conspiracy. United States v. DeFabritus, 605 F.Supp. 1538, 1548 (S.D.N.Y.1985); United States v. Turkish, 458 F.Supp. 874, 882 (S.D.N.Y.1978), aff'd, 623 F.2d 769 (2d Cir.1980). However, if the co-conspirator will be a government witness at trial, the defendant is only entitled to discovery of statements of a co-conspirator as required by the Jencks Act and not the broader discovery provided by Rule 16. United States v. Collins, 652 F.2d 735, 738 (8th Cir.), cert. denied, 455 U.S. 906, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1981). E. Exculpatory material pursuant to Brady. Under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1967), the government must disclose information that is: (1) material, i.e., evidence that might affect the outcome of trial; and (2) obviously exculpatory. Under Rule 16, the government must disclose information provided: (1) the request is specific; (2) the information falls within the parameters of the rule, although it may be nonexculpatory as well as exculpatory; and (3) the request is reasonable. Thus, the government has an obligation to produce all exculpatory material. The question is the timing of the disclosure. The material must be disclosed in time for the effective use of the material at trial. United States v. Higgs, 713 F.2d 39, 43-44 (3d Cir.1983), cert. denied, — U.S. ---, 104 S.Ct. 725, 79 L.Ed.2d 185 (1984). At oral argument of these motions, the government stated that disclosure of Brady material would be made three days before the testimony of a witness. At oral argument the court informed the defendants that if this period of time proves to be inadequate for the effective use of the information, the court will consider an adjournment to allow defense counsel to prepare. F. Witness list. Payden seeks to have the government furnish a witness list. There is no obligation to provide a witness list and it is within the court’s discretion whether to require the government to do so. The defendant is entitled to the government’s witness list if “disclosure [is] both material to the preparation of the defense and reasonable in light of the circumstances surrounding" }, { "docid": "8138317", "title": "", "text": "from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se. Appellants Williams and Joyner filed a motion dismissing counsel eleven days before trial. They filed a motion requesting a continuance, relying upon the language of § 3161(e)(2). United States v. Moya-Gomez, 860 F.2d 706, 741-42 (7th Cir.1988), cert. denied, 492 U.S. 908, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989), holds that the thirty day period prescribed by the statute is measured, exactly as the language of the statute indicates, from the moment the defendant chooses to proceed pro se or from the time the defendant first appears with counsel. Defendants first appeared with counsel on March 9, 1992. The trial judge denied their motion for a continuance on May 1. The defendants had eleven more days to prepare for trial, rendering a total preparation time of over two months. The judge specifically required counsel for the defense to remain available in an advisory capacity. The trial court’s ruling on a motion for continuance is committed to the sound discretion of the trial judge, and the ruling will not be disturbed unless there is a clear showing of abuse of discretion. United States v. Darby, 744 F.2d 1508, 1521 (11th Cir.1984), cert. denied, 471 U.S. 1100, 105 S.Ct. 2322, 85 L.Ed.2d 841 (1985). 2. Material Discovery Under the Jencks Act Under the Jencks Act, the government was not required to turn over witness statements during the suppression hearing. The Jencks Act provides in pertinent part: In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government ivitness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case. The Jencks Act, 18 U.S.C. § 3500(a) (emphasis added). There is not a Jencks Act basis for requesting such materials prior to trial to avoid surprise. In United States v. Murphy, 569 F.2d 771 (3d Cir.), cert." }, { "docid": "5925512", "title": "", "text": "recorded surveillance notes. C. Motion for a New Trial Cuevas appeals from the district court’s denial of his motion for a new trial on the grounds of newly discovered exculpatory evidence improperly withheld by the government. Specifically, Cuevas contends that the government improperly redacted portions of police reports that it was required to disclose under Brady and the Jencks Act. He also contends that the government lied about not knowing the whereabouts of Jose Herrera, a potential material witness for the defense. The district court’s denial of a motion for new trial is reviewed for an abuse of discretion. United States v. Lopez, 803 F.2d 969 (9th Cir.1986), cert. denied, 481 U.S. 1030, 107 S.Ct. 1958, 95 L.Ed.2d 530 (1987). 1. Improper Redactions After the conclusion of the trial, the defense discovered that the government had surreptitiously redacted portions of police reports it disclosed in pretrial discovery. The defense discovered this because defense counsel happened to receive the same report but unredacted in the course of representing an unrelated defendant in a separate matter. Before trial, the defense sought all surveillance reports under the Jencks Act and Brady. The government admits that it redacted portions of surveillance reports and that “[t]he deletions were not obvious from reviewing the redacted report because the paragraphs in question were “whited out’ to the end of the page” and other paragraphs “had been completely eliminated from the report provided to Cuevas, not simply “whited out’ or ‘blacked out.’ ” In one instance, rather than blacking out certain information, the AUSA directed the investigator to regenerate a second official investigative report omitting that information. The government’s actions were entirely improper. Under the Jencks Act, the government did not have a right unilaterally to redact the reports. The Jencks Act provides that the United States shall “produce any statement ... of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(b). “There are no exceptions to the Jencks rule that all statements relevant to the subject matter of the witness’" } ]

[ { "docid": "20342624", "title": "", "text": "Plaintiffs’ exhibits further demonstrate that the contents of this presentation were reflected in documents Scott prepared for the meeting. Plaintiffs have not shown that they are unable to obtain these documents, or that they will be inadequate substitutes for the discovery sought from S & P. It is possible that Scott personnel made relevant disclosures at the meeting which are not reflected in any of Scott’s documents or in S & P’s published analysis. The mere possibility of helpful information, however, is not a sufficiently strong showing of need to justify the great intrusion into the deliberative and editorial process of the press which disclosure of the requested material would cause. Finally, because plaintiffs will not be permitted any discovery concerning S & P’s internal procedures or analysis, or concerning information provided by Scott other than what is reflected in Scott’s documents, plaintiffs’ request for the deposition of an S & P representative will be denied. MEMORANDUM ON RECONSIDERATION This consolidated class action involves allegations of securities fraud against defendant Scott Paper Company (“Scott”). Plaintiffs claim that Scott made false and misleading representations concerning its operations, financial condition and future business prospects. In particular, plaintiffs allege that Scott made optimistic earnings projections which were without a reasonable basis, and are thus actionable misrepresentations under Virginia Bankshares, Inc. v. Sandberg, 501 U.S. -, 111 S.Ct. 2749, 115 L.Ed.2d 929 (1991). On November 30, 1992, this Court denied plaintiffs’ motion to compel discovery from Standard & Poor’s Corporation (“S & P”). We held that S & P is a member of the press entitled to assert a qualified journalist’s privilege against compelled discovery. We further held that plaintiffs did not meet their burden of showing an overriding need for the information sought. Before the Court is plaintiffs’ motion for reconsideration of that decision or, in the alternative, to allow the deposition of Basil Anderson, Scott’s primary contact with S & P. S & P rates and comments on the creditworthiness of public companies and their securities and disseminates that information to the public through its several periodicals. During the class period, S" } ]

[ { "docid": "4991967", "title": "", "text": "does not dispute that Duff & Phelps did not make the false oral communications to him or class members in person, there is no such “in person” requirement. Duff & Phelps knew that the statements it made to the Class Brokers were statements that would be passed directly to the Class members and would influence their decision to purchase the Notes. (Plf s Brief at 13, emphasis added.) The Court finds, however, that Shain’s theory that Duff & Phelps “solicited” (or provided information to) two brokers who passed that information on to plaintiff, does not give rise to § 12 liability. As noted above, in Pinter the Supreme Court held that Section 12 liability cannot be imposed upon “those who merely assist in another’s solicitation efforts.” 486 U.S. at 651 n. 27, 108 S.Ct. at 2081 n. 27. Moreover, the district court decisions in this circuit consistently have held that persons are not hable under § 12 for solicitation unless they directly or personally soheit the buyer. See, e.g., Pompano-Windy City Partners, Ltd. v. Bear Stearns & Co., 794 F.Supp. 1265, 1283-85 (S.D.N.Y.1992) (liability should not be extended beyond those who “actively soheit offers to buy securities”); Mabon, Nugent & Co. v. Borey, 127 B.R. 727, 734-35 (S.D.N.Y.1991) (members of company’s board of directors who authorized securities sales but did not soheit sales are “quintessentially collateral participants” who are not hable under § 12; without passing title to the purchaser, or offering to sell the security, or soliciting the sale motivated in part by a desire to serve his own or the owner’s financial interests, “substantial participation in causing the sale to take place ... is insufficient” to cause § 12 liability); In re Gas Reclamation, Inc. Sec. Litig., 733 F.Supp. 713, 723-24 (S.D.N.Y.1990) (no § 12 liability where defendant did not have “direct contact” or “personally soheit” plaintiff or other investors); HB Holdings Corp. v. Scovill, Inc., 88 Civ. 7983, 1990 WL 37869 at * 5 (S.D.N.Y. March 26, 1990) (no liability where defendants assisted seher in stock sale but “were not involved in the actual sale and did" }, { "docid": "4991955", "title": "", "text": "that the Court dismiss the federal securities law claims with prejudice and the state law claims without prejudice. THE COMPLAINT On a motion to dismiss, the Court must accept the well-pleaded allegations in the complaint as true. E.g., In re Towers, 1995 WL 571888 at * 1, citing Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989). Accordingly, this opinion will summarize Shain’s complaint, without resorting to the phrase “plaintiff alleges.” Towers was engaged in a far-reaching “Ponzi scheme” designed to deceive purchasers of Towers Notes into believing Towers was a healthy and growing concern when it was failing on a massive scale and kept afloat only through using cash from subsequent Note offerings to make the interest payments on earlier Notes. (Cplt. ¶¶ 10-11, 15-22.) On or about March 10, 1992 and August 24, 1992, Shain purchased $200,000 of the more than $215 million of Notes issued by Towers pursuant to five “private placement” Offering Memoranda. (Cplt. ¶¶ 5,19.) “The Duff & Phelps [proposed] Class is defined as all persons who purchased Notes from February 15, 1989 to the present (‘Class Period’) by or through broker-dealers Cooper Davis, located in Chicago, Illinois, and East-West Capital, located in Southfield, Michigan. (Cooper-Davis and East-West Capital are referred to as the ‘Class Brokers’).” (Cplt. ¶7.) There are at least 80 members of the proposed class, who purchased over $17 million of Towers Notes. (Cplt. ¶ 9.) The gist of Shain’s complaint is that “Duff & Phelps actively foisted a uniform and consistent set of misrepresentations and omissions on the Duff & Phelps Class via the Class Brokers who reiterated them to, or relied on them for, the Class.” (Cplt. ¶ 11.) Beginning in or about July 1990, “in an effort to lend additional credibility and respectability to its operations, Towers hired Duff & Phelps to rate the Towers Bonds.” (Cplt. ¶ 25.) Towers paid “substantial sums” to Duff & Phelps, “ostensibly for the investigatory and other ‘due diligence’ activities by Duff & Phelps that were a supposed precondition of a Duff & Phelps bond rating.” (Id.) The relationship between Towers and Duff" }, { "docid": "20342610", "title": "", "text": "MEMORANDUM BARTLE, District Judge. This consolidated class action involves allegations of securities fraud against defendant Scott Paper Company (“Scott”). Plaintiffs claim that Scott made false and misleading representations concerning its operations, financial condition and future business prospects. In particular, plaintiffs allege that Scott made optimistic earnings projections which were without a reasonable basis, and are thus actionable misrepresentations under Virginia Bank-shares, Inc. v. Sandberg, 501 U.S. -, 111 S.Ct. 2749, 115 L.Ed.2d 929 (1991). Before the court is the motion of plaintiffs to compel discovery from Standard & Poor’s Corporation (“S & P”), a non-party. S & P opposes the motion, asserting that it is protected by a qualified journalist’s privilege. S & P rates and comments on the creditworthiness of public companies and their securities and disseminates that information to the public through its several periodicals. During the class period, S & P met and corresponded with employees of Scott in order to rate the creditworthiness of Scott’s debt securities. Plaintiffs assert that the information Scott provided to S & P will reflect whether Scott had a reasonable basis for its positive predictions. Plaintiffs seek discovery of documents which S & P obtained from Scott, as well as notes and other unpublished documents reflecting communications between' S & P and Scott, and information about S & P’s internal procedures and deliberative processes. Plaintiffs also seek to depose an S & P employee who was present at a meeting with Scott personnel. Plaintiffs’ request for the internal operating procedures and deliberations of S & P is without merit. Under Rule 26(b) of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ...” (emphasis added). The rule casts a wide net allowing discovery of all relevant material regardless of its admissibility at trial so long as “the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id. The scope of permissible discovery is not, however, without its limits. The information sought must be somehow relevant to the case. Information" }, { "docid": "23365591", "title": "", "text": "is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, ... or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public.” N.Y. Civ. Rights Law § 79-h(a)(6). It defines “[n]ews” as “written, oral, ... or electronically recorded information or communication concerning ... events or other matters of public concern or public interest or affecting the public welfare.” Id. § 79-h(a)(8). Fitch argues that it conducts research, fact-gathering, and analytical activity that is directed towards matters of general public concern, just like any journalist, and notes that it makes its information available on its web site to the general public. In support of this argument, Fitch points to two district court cases that found S & P, a competitor of Fitch with similar business activity, to be a journalist for the purpose of asserting the privilege. See In re Pan Am Corp., 161 B.R. 577, 580-82 (S.D.N.Y.1993); In re Scott Paper Co. Sec. Litig., 145 F.R.D. 366, 369-70 (E.D.Pa.1992). Although we agree that the analysis contained in these decisions is compelling, we believe that subtle differences in the facts of this case mandate a different outcome. First, we find the nature of Fitch’s asserted newsgathering relevant. ASB argues that Fitch only “reports on” specific transactions for which it has been hired. Unlike a business newspaper or magazine, which would cover any transactions deemed newsworthy, Fitch only “covers” its own clients. We believe this practice weighs against treating Fitch like a journalist. We note that the district court in Pan Am based its holding that S & P was a journalist in part upon the fact that S & P rated virtually all public debt financing and preferred stock issues whether they were done by S & P clients or not. See Pan Am, 161 B.R. at 583; see also LaSalle Nat’l Bank v. Duff & Phelps Credit Rating Co., 951 F.Supp. 1071, 1095-96 (S.D.N.Y.1996) (declining to permit Duff & Phelps to assert privilege because" }, { "docid": "2504353", "title": "", "text": "was the motive for the firing. Finally the supervisors’ deposition testimony is arguably self-serving. Although McLaury’s counsel had the chance to cross-examine those supervisors at the time of the depositions, the credibility of their testimony (particularly that relating to alleged conversations when only they were present) is peculiarly important and can best be measured by the fact-finder during the heat of a fair trial. See 10A C. Wright, A. Miller & M.K. Kane, Federal Practice and Procedure: Civil § 2726, at 113-15 (1983). The defendants also argue that, even if the plaintiff establishes a prima facie case, they have articulated a legitimate nondiscriminatory reason for firing him, i.e., his poor job performance. Of course that argument rests on the same factual premises which this court has already stated are still at issue. Hence, Count V survives that argument as well. Finally, the plaintiff hints in his complaint that the defendants deprived him of a “privilege” of his employment because of his age in violation of 29 U.S.C. § 623(a). The “privilege” alluded to is employee ownership of Duff and Phelps stock. The sole basis for McLaury’s claim that stock ownership is a privilege of employment is the Agreement. See PX 17-21. The Agreement, however, in no way makes stock ownership an employee privilege; instead, its purpose ostensibly is to create obligations for those Duff and Phelps employees who own stock. See id. Although this court, for reasons already given, cannot grant the defendants’ motion for summary judgment on Count V, the court deems it established that stock ownership was not a “privilege” of employment with Duff and Phelps for purposes of 29 U.S.C. § 623(a). See Fed.R.Civ.P. 56(d). Conclusion The court denies the defendants’ motion for summary judgment. The court further strikes the claims for rescission from Counts I through IV and deems as established that stock ownership was not a “privilege” of employment with Duff and Phelps for purposes of 29 U.S.C. § 623(a). . Congress intended the phrase \"instrumentality of interstate commerce” to be broader than Section 17(a)'s \"instruments of transportation or communication in interstate commerce.” See Myzel," }, { "docid": "15321923", "title": "", "text": "Duff & Phelps Credit Rating Co., 951 F.Supp. 1071, 1096-97 (S.D.N.Y.1996) (Knapp, J.). The defendant in that case had argued that it was “a member of the free press entitled to the privileges and immunities accorded the press,” and that the actual malice standard applied to the ease; the court rejected these arguments. LaSalle Nat’l Bank v. Duff & Phelps Credit Rating Co., 951 F.Supp. at 1095-97. The credit ratings at issue in this case are not entitled to First Amendment protection. When determining whether speech addresses a matter of public concern, courts should consider the expression’s content, form, and context as revealed by the whole record. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. at 761, 105 S.Ct. 2939. Additionally, the sufficiency of a complaint is a question of law, and when considering and addressing a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322, 127 S.Ct. 2499; Moore v. Guthrie, 438 F.3d at 1039; Hous. Auth. of Kaw Tribe v. City of Ponca, 952 F.2d at 1187. The Plaintiffs do not allege that the Rating Agency Defendants ever published their ratings to the public at large. See In re Nat’l Century Fin. Enters., Inc., Inv. Litig., 580 F.Supp.2d at 640. They allege: “The ratings on the Certificates issued by the Rating Agency Defendants were prominently displayed in the Offering Documents, as each of the defendants was aware that most institutional investors were prohibited from purchasing investments with any rating other than investment grade.” Amended Complaint ¶4, at 8. In other areas in the Amended Complaint, the Plaintiffs allege only that the ratings appeared in the offering documents. See Amended Complaint ¶¶ 12, 39-42, 46, 68-70, 77, 81, 130 at 11, 17-19, 33-35, 38-39, 51. The Amended Complaint also asserts that the Defendants specifically targeted institutional investors for the investments. See Amended Complaint ¶ 74," }, { "docid": "19089029", "title": "", "text": "Bank v. Duff & Phelps Credit Rating Co., 951 F.Supp. 1071, 1088-89 (S.D.N.Y.1996) (Knapp, J.); Rosenheck v. Rieber, 932 F.Supp. 626, 627 n. 1 (S.D.N.Y.1996) (Rakoff, J.); Department of Econ. Dev. v. Arthur Andersen & Co. (U.S.A.), 924 F.Supp. 449, 475-78 (S.D.N.Y.1996) (Mukasey, J.); Sundial Int’l Fund Ltd. v. Delta Consultants, Inc., 923 F.Supp. 38, 41 (S.D.N.Y.1996) (Griesa, J.); see also Lutin v. New Jersey Steel Corp., Nos. 93 Civ. 6612 & 95 Civ. 4965, 1996 WL 636037, *9 (S.D.N.Y. Nov. 1, 1996) (Schwartz, J.), aff'd on other grounds without published opinion, No. 96 Civ. 9664, 1997 WL 447005 (2d Cir. Aug. 7, 1997); Edward Brodsky, Civil Aiding and Abetting Under RICO, N.Y.L.J., Dec. 10, 1997, at 4; Carrie E. Goodwin, Central Bank v. First Interstate Bank: Not Just the End of Aiding and Abetting Under Section 10(b), 52 Wash. & Lee L.Rev. 1387 (1995); Jed S. Rakoff, Aiding and Abetting Under Civil Rico, N.Y.L.J., May 12, 1995, at 3. Accordingly, even if plaintiffs had standing to assert an aiding and abetting claim against the professional defendants under RICO, the claim is dismissed because this cause of action is not legally cognizable. 3. RICO Claims Under 18 U.S.C. §§ 1962(c) & (d) A defendant is not liable under § 1962(c) for aiding and abetting RICO violations unless it had some part in directing the affairs of the RICO enterprise. See First Interregional Advisors Corp. v. Wolff, 956 F.Supp. 480, 485 (S.D.N.Y.1997) (applying Reves v. Ernst & Young, 507 U.S. 170, 179, 113 S.Ct. 1163, 1170, 122 L.Ed.2d 525 (1993)). Merely being associated with the RICO enterprise does not suffice to establish liability under RICO. Wolff, 956 F.Supp. at 485. Here, plaintiffs fail to allege that the professional defendants had some part in directing the affairs of a RICO enterprise. Plaintiffs only allege that the professional defendants “knowingly, intentionally or recklessly” assisted in effecting the Transactions, in rendering advice on the Transactions, and/or in preparing disclosures regarding the Transactions or disclosures regarding Keene’s asbestos liability. (Compl.¶¶ 330-33, 335). Plaintiffs now claim in their opposition that they have also stated a valid" }, { "docid": "4991953", "title": "", "text": "is not subject to § 12 liability. Defendant has also moved for dismissal of plaintiffs pendent state law claims. When federal claims are dismissed before trial, the Supreme Court has stated that the district court ordinarily should decline the exercise of pendent jurisdiction over the state claims by dismissing the state claims without prejudice. Carnegie-Mellon v. Cohill (1988) 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 619 n. 7, 98 L.Ed.2d 720. The Magistrate Judge therefore recommends that we dismiss plaintiffs pendent state law claims without prejudice. Finding such a recommendation wholly reasonable, we direct the clerk to enter an order dismissing the federal securities law claims with prejudice, and dismissing the state law claims without prejudice. SO ORDERED. REPORT AND RECOMMENDATION PECK, United States Magistrate Judge. . This purported class action is another of the proceedings arising from the alleged “Ponzi scheme” involving the securities of Towers Financial Corporation (“Towers”). The background facts about Towers and its alleged Ponzi scheme are more fully described in this Court’s Report and Recommendation dated September 20,1995 in In re Towers Financial Corporation Noteholders Litigation, 93 Civ. 0810 (WK)(AJP), 1995 WL 571888 (S.D.N.Y. Sept. 20, 1995), familiarity with which is assumed. The present action is related to In re Towers but not consolidated into that action. Plaintiff Myron Shain, who purchased $200,000 of Towers Notes brought this action on behalf of himself and an alleged class of similarly situated purchasers, against defendant Duff & Phelps Credit Rating Company (“Duff & Phelps”), a securities rating service. (Amended Complaint [hereafter, “complaint” or “Cplt.”] ¶¶ 5, 6, 24.) Sham’s complaint asserts federal securities law claims against Duff & Phelps for alleged violations of Sections 12(1) & 12(2) of the Securities Act of 1933, and also asserts three pendent state law claims. Presently before the Court is Duff & Phelps’ motion to dismiss Shain’s complaint for failure to state a claim upon which relief can be granted and for failure to plead fraud with particularity, pursuant to Rules 12(b) and 9(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend" }, { "docid": "8230796", "title": "", "text": "is liable for any defects or delay in construction of the Bronx Criminal Court Complex. Because DASNY’S indemnification claim against ADF, American Casualty’s cross-claims against SMI, and RVA’s claims against Strandberg do not expand the scope of discovery, it makes sense to let these claims proceed at this stage and revisit them after discovery via a summary judgment motion. See Kermanshah v. Kermanshah, 580 F.Supp.2d 247, 268 (S.D.N.Y.2008) (Peck, M.J.) (denying defendants’ motion to dismiss plaintiffs fraud claim because it would not expand the scope of discovery where a surviving breach of contract claim substantially tracked the fraud claim); Brown v. DeFrank, 06 Civ. 2355, 2006 WL3313821 at *28 (S.D.N.Y. Nov. 15, 2006) (Peck, M.J.) (denying defendant’s motion to dismiss claims where decision on the motion would not affect scope of discovery); New Eng. Cent. R.R. v. Springfield Terminal Ry. Co., 415 F.Supp.2d 20, 27 n. 5 (D.Mass.2006) (“It is significant that denial of this partial motion to dismiss Plaintiffs state law claims will not increase the discovery burden because Plaintiffs federal claims rely on the same set of underlying facts.”); Doe v. Goord, 04 Civ. 0570, 2004 WL 2829876 at *7 n. 13 (S.D.N.Y. Dec. 10, 2004) (Peck, M.J.); Am. Rock Salt Co. v. Norfolk S. Corp., 180 F.Supp.2d 420, 426 (W.D.N.Y.2001) (denying defendants’ motion to dismiss a second cause of action that was “based upon the same set of facts” as a surviving breach of contract claim where “permitting [the second] claim to go forward should not appreciably expand the scope of discovery needed in this case” and thus would not “prejudice ... defendants”); Metallia U.S.A. LLC v. Stulpinas, 98 Civ. 3497, 1998 WL 1039103 at *2 n. 3 (S.D.N.Y. Dec. 16, 1998) (Peck, M.J.) (citing cases); LaSalle Nat’l Bank v. Duff & Phelps Credit Rating Co., 951 F.Supp. 1071, 1095 (S.D.N.Y.1996)(Knapp, D.J. & Peck, M.J.). CONCLUSION Fifth party defendants SMI/ADF’s motion to dismiss DASNY’s indemnification claims (Dkt. No. 321) is DENIED without prejudice as to ADF and moot as to SMI due to DASNY’s prior dismissal of all of its claims against SMI. SMI/ADF’s motion to dismiss" }, { "docid": "19089028", "title": "", "text": "Liability for Aiding and Abetting a RICO Violation Plaintiffs and professional defendants discuss at length in their moving papers whether, in the wake of the Supreme Court’s ruling in Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N .A., 511 U.S. 164, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994), a private cause of action exists for civil claims of aiding and abetting RICO violations. Several judges in this Court have held that Central Bank forecloses aiding and abetting liability for a civil RICO violation. I agree with their conclusions and their reasoning, and I therefore hold that a private cause of action does not exist for aiding and abetting a RICO violation because the text of 18 U.S.C. § 1962 does not reveal a congressional intent to impose civil liability for such conduct. See Hayden v. Paul, Weiss, Rifkind, Wharton & Garrison, 955 F.Supp. 248, 255-57 (S.D.N.Y.1997) (Sprizzo, J.); Ross v. Patrusky, Mintz & Semel, No. 90 Civ. 1356, 1997 WL 214957, at *11 (S.D.N.Y. Apr. 29, 1997) (Kram, J.); LaSalle Nat’l Bank v. Duff & Phelps Credit Rating Co., 951 F.Supp. 1071, 1088-89 (S.D.N.Y.1996) (Knapp, J.); Rosenheck v. Rieber, 932 F.Supp. 626, 627 n. 1 (S.D.N.Y.1996) (Rakoff, J.); Department of Econ. Dev. v. Arthur Andersen & Co. (U.S.A.), 924 F.Supp. 449, 475-78 (S.D.N.Y.1996) (Mukasey, J.); Sundial Int’l Fund Ltd. v. Delta Consultants, Inc., 923 F.Supp. 38, 41 (S.D.N.Y.1996) (Griesa, J.); see also Lutin v. New Jersey Steel Corp., Nos. 93 Civ. 6612 & 95 Civ. 4965, 1996 WL 636037, *9 (S.D.N.Y. Nov. 1, 1996) (Schwartz, J.), aff'd on other grounds without published opinion, No. 96 Civ. 9664, 1997 WL 447005 (2d Cir. Aug. 7, 1997); Edward Brodsky, Civil Aiding and Abetting Under RICO, N.Y.L.J., Dec. 10, 1997, at 4; Carrie E. Goodwin, Central Bank v. First Interstate Bank: Not Just the End of Aiding and Abetting Under Section 10(b), 52 Wash. & Lee L.Rev. 1387 (1995); Jed S. Rakoff, Aiding and Abetting Under Civil Rico, N.Y.L.J., May 12, 1995, at 3. Accordingly, even if plaintiffs had standing to assert an aiding and abetting claim against the" }, { "docid": "4991966", "title": "", "text": "soliciting the purchase’ may be liable as statutory sellers” under § 12. 486 U.S. at 651 n. 27, 108 S.Ct. at 2081 n. 27. B. Duff & Phelps’ “Solicitation” of the Brokers But Not the Plaintiff Does Not Give Rise to Liability Under Section 12 Duff & Phelps is not alleged to be the “owner” of the Notes that “passed title ... to the buyer for value.” Rather, Shain asserts that Duff & Phelps is liable as one who “solicited” the sale of the Notes. (Plaintiff’s Memorandum in Opposition to Defendant Duff & Phelps’ Motion to Dismiss, dated January 13, 1995 [“Plfs Brief’], at 5.) Shain, however, does not allege that Duff & Phelps ever directly “solicited” him, or indeed that he ever had any direct communication, oral or written, with Duff & Phelps about the Towers Notes. Rather, Shain alleges that “Duff & Phelps ‘solicited’ the sales of Towers Notes to the Plaintiff through the Class Brokers.” (Id., emphasis added; see also, e.g., Cplt. ¶¶7, 20, 26.) Specifically, Shain admits that Here, although Plaintiff does not dispute that Duff & Phelps did not make the false oral communications to him or class members in person, there is no such “in person” requirement. Duff & Phelps knew that the statements it made to the Class Brokers were statements that would be passed directly to the Class members and would influence their decision to purchase the Notes. (Plf s Brief at 13, emphasis added.) The Court finds, however, that Shain’s theory that Duff & Phelps “solicited” (or provided information to) two brokers who passed that information on to plaintiff, does not give rise to § 12 liability. As noted above, in Pinter the Supreme Court held that Section 12 liability cannot be imposed upon “those who merely assist in another’s solicitation efforts.” 486 U.S. at 651 n. 27, 108 S.Ct. at 2081 n. 27. Moreover, the district court decisions in this circuit consistently have held that persons are not hable under § 12 for solicitation unless they directly or personally soheit the buyer. See, e.g., Pompano-Windy City Partners, Ltd. v. Bear" }, { "docid": "15321922", "title": "", "text": "Amendment defamation analysis.” Compuware Corp. v. Moody’s Investors Services, Inc., 499 F.3d 520, 523-24, 526 (6th Cir.2007). A district court in the Southern District of Ohio denied a motion to dismiss raising First-Amendment arguments that a rating was a matter of public concern, because “the only place that the ratings are alleged to have appeared were in the offering materials given to a select class of investors,” the company at issue was a privately held company, and the “complaint deliberately steerfed] clear of characterizing” the ratings “as a matter of public concern.” In re Nat’l Century Fin. Enters., Inc., Inv. Litig., 580 F.Supp.2d at 640 (citing Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. at 762, 105 S.Ct. 2939). Similarly, the Honorable Whitman Knapp, United States District Judge, in the Southern District of New York concluded that actual malice protection did not apply when a credit rating was “privately contracted for and intended for use in the private placement Offering Memoranda, rather than for publication in a general publication.” LaSalle Nat’l Bank v. Duff & Phelps Credit Rating Co., 951 F.Supp. 1071, 1096-97 (S.D.N.Y.1996) (Knapp, J.). The defendant in that case had argued that it was “a member of the free press entitled to the privileges and immunities accorded the press,” and that the actual malice standard applied to the ease; the court rejected these arguments. LaSalle Nat’l Bank v. Duff & Phelps Credit Rating Co., 951 F.Supp. at 1095-97. The credit ratings at issue in this case are not entitled to First Amendment protection. When determining whether speech addresses a matter of public concern, courts should consider the expression’s content, form, and context as revealed by the whole record. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. at 761, 105 S.Ct. 2939. Additionally, the sufficiency of a complaint is a question of law, and when considering and addressing a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the" }, { "docid": "2504354", "title": "", "text": "ownership of Duff and Phelps stock. The sole basis for McLaury’s claim that stock ownership is a privilege of employment is the Agreement. See PX 17-21. The Agreement, however, in no way makes stock ownership an employee privilege; instead, its purpose ostensibly is to create obligations for those Duff and Phelps employees who own stock. See id. Although this court, for reasons already given, cannot grant the defendants’ motion for summary judgment on Count V, the court deems it established that stock ownership was not a “privilege” of employment with Duff and Phelps for purposes of 29 U.S.C. § 623(a). See Fed.R.Civ.P. 56(d). Conclusion The court denies the defendants’ motion for summary judgment. The court further strikes the claims for rescission from Counts I through IV and deems as established that stock ownership was not a “privilege” of employment with Duff and Phelps for purposes of 29 U.S.C. § 623(a). . Congress intended the phrase \"instrumentality of interstate commerce” to be broader than Section 17(a)'s \"instruments of transportation or communication in interstate commerce.” See Myzel, 386 F.2d at 727 n. 2; 15 U.S.C. § 77q(a). The court acknowledges that its ruling directly rejects Judge Shadur’s oral analysis of this question in Guy v. Duff and Phelps, Inc., No. 84 C 2813, transcript at 5-7 (N.D.Ill. May 29, 1987). .The evidence of Hansen’s willingness is based on an SPSFD internal communication. See PX 11. Under Rule 56 of the Federal Rules of Civil Procedure, this court can consider evidence admissible or usable at trial. See 10A C. Wright, A. Miller & M.K. Kane, Federal Practice and Procedure: Civil § 2721, at 40 (1983). In their reply, the defendants did not object to the admissibility of PX 11. This court, however, interprets Rule 56(e) to require some independent analysis by the court regarding the authenticity of documents submitted pursuant to a summary judgment motion. Even though PX 11 is not a sworn or certified copy, PX 11 does contain a \"prima facie aura of reliability;” therefore the court considered it. See Oglesby v. Coca-Cola Bottling Co. of Chicago/Wisconsin, 620 F.Supp. 1336, 1345" }, { "docid": "8856446", "title": "", "text": "result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL — CIO Pension Fund v. Hermann, 9 F.3d l049, 1054 (2d Cir.1993), cert, denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert, denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ .P. 72, 6(a), 6(e). SERVICE Plaintiffs’ counsel is to serve this Report and Recommendation on all counsel and unrepresented parties. Nov. 25,1997. . See, e.g., SEC v. Towers Fin. Corp., 205 B.R. 27 (S.D.N.Y. 1997); Wechsler v. Squadron, Ellenoff, Plesent & Sheinfeld LLP, 201 B.R. 635 (S.D.N.Y. 1996); LaSalle Nat'l Bank v. Duff & Phelps Credit Rating Co., 951 F.Supp. 1071 (S.D.N.Y. 1996); In re Towers Fin. Corp. Noteholders Litig., 93 Civ. 0810, 1996 WL 393579 (S.D.N.Y. July 15, 1996); SEC v. Towers Fin. Corp., 93 Civ. 0744, 1996 WL 288176 (S.D.N.Y. May 31, 1996); SEC v. Towers Fin. Corp., 93 Civ. 0744, 1996 WL 406685 (S.D.N.Y. March 26, 1996); Shain v. Duff & Phelps Credit Rating Co., 915 F.Supp. 575 (S.D.N.Y.1996); In re Towers Fin. Corp. Noteholders Litig., 93 Civ. 0810, 1995 WL 571888 (S.D.N.Y. Sept. 20, 1995), report & rec. adopted, 936 F.Supp. 126 (S.D.N.Y.1996). . Noteholder plaintiffs are seeking to dismiss defendants Raymond Lewis, Xavier Eboli, Greg Pattakos, Anthony DiNicolas, David Franklin and Nicholas Pattakos. All other defendants have either settled with the class or been voluntarily dismissed, with Court approval. . Indeed, the Court previously awarded $5,000 inactive payments to the named class represéntatives in connection with the Gibney-BronsonEisner settlement. (See 11/22/96 Tr. at 22-23.)" }, { "docid": "23589154", "title": "", "text": "plaintiffs reliance on defendant’s action, [5] caused [plaintiff] injury. LaSalle Nat’l Bank v. Duff & Phelps Credit Rating Co., 951 F.Supp. 1071, 1082, (S.D.N.Y.1996) (alteration in original) (quoting In re Time Warner Inc. Securities Litig., 9 F.3d 259, 264 (2d Cir.1993)). The failure to establish any of these elements is fatal to a Section 10(b) or Rule 10b-5 claim. See id.; Central Bank of Denver, N.A v. First Interstate Bank of Denver, N.A, 511 U.S. 164, 190-91, 114 S.Ct. 1439, 1455, 128 L.Ed.2d 119 (1994). This Court has reviewed plaintiffs Complaint in the light most favorable to him, and has liberally construed it as a pro se pleading. Despite such efforts, however, this Court finds that—as Magistrate Judge Bu-ehwald explained—plaintiff simply has failed to allege that defendants’ alleged misrepresentations occurred in connection with plaintiffs securities purchase, or the plaintiff relied upon those alleged misrepresentations. Because these allegations are necessary elements of a federal securities fraud claim under Section 10(b) or Rule 10b-5, this Court finds that magistrate Judge Buchwald’s recommendation that these claims be dismissed is not clearly erroneous. Accordingly, this Court finds that her recommendation to dismiss plaintiffs securities fraud claims should be adopted. In addition, the Report recommends that this Court dismiss plaintiffs federal securities laws claims with prejudice. Even though the dismissal of a fraud claim subject to the heightened pleading requirements of Rule 9(b) is typically without prejudice, where, as here, plaintiff “ha[s] presented nothing to suggest that they could amend the complaint to adequately plead” a Section 10(b) or Rule 10b-5 cause of action, dismissal with prejudice may be appropriate. In re Time Warner, 9 F.3d at 266. In the case at bar, plaintiff alleges that defendants’ misconduct occurred after he purchased the Wiekes warrants. As such, he has “presented nothing” which suggests that defendants’ wrongdoing was related to his purchase, or that he relied upon their wrong-doing to his detriment in making his warrant purchase. Accordingly, this Court finds that Magistrate Judge Buchwald’s recommendation to dismiss plaintiffs securities law violations with prejudice is not clearly erroneous, and should be adopted. 2. RICO Claims In" }, { "docid": "23365592", "title": "", "text": "Scott Paper Co. Sec. Litig., 145 F.R.D. 366, 369-70 (E.D.Pa.1992). Although we agree that the analysis contained in these decisions is compelling, we believe that subtle differences in the facts of this case mandate a different outcome. First, we find the nature of Fitch’s asserted newsgathering relevant. ASB argues that Fitch only “reports on” specific transactions for which it has been hired. Unlike a business newspaper or magazine, which would cover any transactions deemed newsworthy, Fitch only “covers” its own clients. We believe this practice weighs against treating Fitch like a journalist. We note that the district court in Pan Am based its holding that S & P was a journalist in part upon the fact that S & P rated virtually all public debt financing and preferred stock issues whether they were done by S & P clients or not. See Pan Am, 161 B.R. at 583; see also LaSalle Nat’l Bank v. Duff & Phelps Credit Rating Co., 951 F.Supp. 1071, 1095-96 (S.D.N.Y.1996) (declining to permit Duff & Phelps to assert privilege because it was hired to rate transaction at issue privately). We have not found much evidence in the record to support Fitch’s claim that it regularly analyzes or publishes a rating for a transaction it is not paid to rate. The only-real information in the record about this question is the testimony of Kevin Duig-nan, managing director of Fitch’s Asset-Backed Securities group, given as part of a hearing in a state court proceeding. He acknowledged that the vast majority of Fitch’s rating activities are initiated by client request. He testified that the occasional “Fitch-Initiated Rating” is usually a follow-up to a security that Fitch has previously rated, or a transaction Fitch and a client discussed rating but failed to agree. Duignan testified as follows: “It is not our [Fitch’s] regular practice to rate transactions ... that we are not paid by the underlying issuer initially. There are transactions that we have commenced on that we have not been paid to rate.” # ■ >fi % # # Q: So is it a fair statement then that" }, { "docid": "8230797", "title": "", "text": "the same set of underlying facts.”); Doe v. Goord, 04 Civ. 0570, 2004 WL 2829876 at *7 n. 13 (S.D.N.Y. Dec. 10, 2004) (Peck, M.J.); Am. Rock Salt Co. v. Norfolk S. Corp., 180 F.Supp.2d 420, 426 (W.D.N.Y.2001) (denying defendants’ motion to dismiss a second cause of action that was “based upon the same set of facts” as a surviving breach of contract claim where “permitting [the second] claim to go forward should not appreciably expand the scope of discovery needed in this case” and thus would not “prejudice ... defendants”); Metallia U.S.A. LLC v. Stulpinas, 98 Civ. 3497, 1998 WL 1039103 at *2 n. 3 (S.D.N.Y. Dec. 16, 1998) (Peck, M.J.) (citing cases); LaSalle Nat’l Bank v. Duff & Phelps Credit Rating Co., 951 F.Supp. 1071, 1095 (S.D.N.Y.1996)(Knapp, D.J. & Peck, M.J.). CONCLUSION Fifth party defendants SMI/ADF’s motion to dismiss DASNY’s indemnification claims (Dkt. No. 321) is DENIED without prejudice as to ADF and moot as to SMI due to DASNY’s prior dismissal of all of its claims against SMI. SMI/ADF’s motion to dismiss American Casualty’s cross-claims (Dkt. No. 375) is granted on consent as to ADF and DENIED without prejudice as to SMI. Strandberg’s motion to dismiss RVA’s sixth-party complaint (Dkt. No. 339) is DENIED without prejudice. After the completion of discovery, SMI, ADF and Strandberg can renew their motions as summary judgment motions. SO ORDERED. FILING OF OBJECTIONS TO THIS OPINION AND ORDER Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Opinion and Order to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of" }, { "docid": "23589153", "title": "", "text": "Because “[pjlaintiffs averments ... fail 'to point to any facts indicative of fraudulent conduct on the part of the defendants ... [Magistrate Judge Bu-ehwald] recommend[s] that plaintiffs securities laws claims be dismissed.” Id. at 9-10. First, this Court notes that Rule 15cl-2 is applicable only to securities brokers and dealers. See Rolf v. Blyth Eastman Dillon & Co., 424 F.Supp. 1021, 1024 (S.D.N.Y.1977), aff'd, 570 F.2d 38 (2d Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1978). In the instant ease, no defendant is a securities broker or dealer. As a result, this Court finds that Magistrate Judge Buchwald’s recommended dismissal of plaintiffs Rule 15cl-2 claim is not clearly erroneous. Accordingly, this Court finds that it should adopt that recommendation. Second, in order to state a securities fraud claim under Section 10(b) and Rule 10b-5, a plaintiff must allege that: [1] in connection with the purchase or sale of securities, the defendant, [2] acting with scienter, [3] made a material false representation or omitted to disclose material information and that [4] plaintiffs reliance on defendant’s action, [5] caused [plaintiff] injury. LaSalle Nat’l Bank v. Duff & Phelps Credit Rating Co., 951 F.Supp. 1071, 1082, (S.D.N.Y.1996) (alteration in original) (quoting In re Time Warner Inc. Securities Litig., 9 F.3d 259, 264 (2d Cir.1993)). The failure to establish any of these elements is fatal to a Section 10(b) or Rule 10b-5 claim. See id.; Central Bank of Denver, N.A v. First Interstate Bank of Denver, N.A, 511 U.S. 164, 190-91, 114 S.Ct. 1439, 1455, 128 L.Ed.2d 119 (1994). This Court has reviewed plaintiffs Complaint in the light most favorable to him, and has liberally construed it as a pro se pleading. Despite such efforts, however, this Court finds that—as Magistrate Judge Bu-ehwald explained—plaintiff simply has failed to allege that defendants’ alleged misrepresentations occurred in connection with plaintiffs securities purchase, or the plaintiff relied upon those alleged misrepresentations. Because these allegations are necessary elements of a federal securities fraud claim under Section 10(b) or Rule 10b-5, this Court finds that magistrate Judge Buchwald’s recommendation that these claims be dismissed" }, { "docid": "4991954", "title": "", "text": "in In re Towers Financial Corporation Noteholders Litigation, 93 Civ. 0810 (WK)(AJP), 1995 WL 571888 (S.D.N.Y. Sept. 20, 1995), familiarity with which is assumed. The present action is related to In re Towers but not consolidated into that action. Plaintiff Myron Shain, who purchased $200,000 of Towers Notes brought this action on behalf of himself and an alleged class of similarly situated purchasers, against defendant Duff & Phelps Credit Rating Company (“Duff & Phelps”), a securities rating service. (Amended Complaint [hereafter, “complaint” or “Cplt.”] ¶¶ 5, 6, 24.) Sham’s complaint asserts federal securities law claims against Duff & Phelps for alleged violations of Sections 12(1) & 12(2) of the Securities Act of 1933, and also asserts three pendent state law claims. Presently before the Court is Duff & Phelps’ motion to dismiss Shain’s complaint for failure to state a claim upon which relief can be granted and for failure to plead fraud with particularity, pursuant to Rules 12(b) and 9(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that the Court dismiss the federal securities law claims with prejudice and the state law claims without prejudice. THE COMPLAINT On a motion to dismiss, the Court must accept the well-pleaded allegations in the complaint as true. E.g., In re Towers, 1995 WL 571888 at * 1, citing Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989). Accordingly, this opinion will summarize Shain’s complaint, without resorting to the phrase “plaintiff alleges.” Towers was engaged in a far-reaching “Ponzi scheme” designed to deceive purchasers of Towers Notes into believing Towers was a healthy and growing concern when it was failing on a massive scale and kept afloat only through using cash from subsequent Note offerings to make the interest payments on earlier Notes. (Cplt. ¶¶ 10-11, 15-22.) On or about March 10, 1992 and August 24, 1992, Shain purchased $200,000 of the more than $215 million of Notes issued by Towers pursuant to five “private placement” Offering Memoranda. (Cplt. ¶¶ 5,19.) “The Duff & Phelps [proposed] Class is defined as all persons who purchased Notes from" }, { "docid": "4991975", "title": "", "text": "the sale of securities, and indirect aid, no matter how substantial, does not amount to a solicitation.”). Finally, plaintiff Shain argues that the allegation in the complaint that Duff & Phelps solicited sales “for financial gain” suffices under Pinter to satisfy § 12. (Plf s Brief at 8-12, citing Cplt. ¶¶ 27, 29, 30.) Sham’s argument misses the point. Pinter requires both (1) solicitation and (2) that such solicitation be for financial gain. See Pinter, 486 U.S. at 647, 108 S.Ct. at 2078 (“liability extends only to the person who [1] successfully solicits the purchase, [2] motivated at least in part by a desire to serve his own financial interests or those of the securities owner.”) (emphasis added). Thus, whether financial gain motivated Duff & Phelps is irrelevant unless plaintiff can allege that Duff & Phelps “solicited” plaintiffs purchase. As discussed above, Shain has not satisfied that hurdle. See Sellin v. Rx Plus, Inc., 730 F.Supp. at 1292-93 (while fact issues exist as to whether defendant acted from financial motive, that does not prevent the Court from granting summary judgment to defendant where undisputed evidence is that defendant “had no role in the solicitation of plaintiff purchaser”). Plaintiff Shain has failed to plead any instance of direct contact between himself and Duff & Phelps (a fact that plaintiff clearly would know), and in fact concedes that Duff & Phelps’ only contact with plaintiff (or the purported class) was indirect, through the Class Brokers. Therefore, as a matter of law Duff & Phelps is not a “statutory seller.” Accordingly, I recommend that the Court dismiss plaintiff’s § 12(1) and 12(2) claims with prejudice. II. PLAINTIFF’S PENDENT STATE LAW CLAIMS SHOULD BE DISMISSED WITHOUT PREJUDICE Duff & Phelps also moves for dismissal of plaintiffs’ pendent state law claims of (1) negligent misrepresentation (Count III), (2) the Illinois Consumer Fraud Act (Count IV), and (3) the Illinois and other state Blue Sky laws (Count V). A district court may exercise pendent jurisdiction over state law claims “whenever the federal-law claims and state-law claims in the case ‘derive from a common nucleus of operative" } ]

[ { "docid": "22320966", "title": "", "text": "The susceptibility of particular concrete situations to this sort of analysis shows that rejection of an outright repeal of § 4 was wholly consistent with acceptance of a technique of accommodation which would lead, in some cases, to the granting of injunctions against concerted activity. Accommodation requires only that the anti-injunction policy of Norris-LaGuardia not intrude into areas, not vital to its ends, where injunctive relief is vital to a purpose of § 301; it does not require unconditional surrender. IV. Today’s decision cannot be fitted harmoniously into the pattern of prior decisions on analogous and related matters. Considered in their light, the decision leads inescapably to results consistent neither with any imaginable legislative purpose nor with sound judicial administration. We have held that uniform doctrines of federal labor law are to be fashioned judicially in suits brought under § 301, Textile Workers v. Lincoln Mills, 353 U. S. 448; that actions based on collective agreements remain cognizable in state as well as federal courts, Dowd Box Go. v. Courtney, 368 U. S. 502; and that state courts must apply federal law in such actions, Teamsters Local v. Lucas Flour Co., 369 U. S. 95. The question arises whether today’s prohibition of injunctive relief is to be carried over to state courts as a part of the federal law governing collective agreements. If so, § 301, a provision plainly designed to enhance the responsibility of unions to their contracts, will have had the opposite effect of depriving employers of a state remedy they enjoyed prior to its enactment. On the other hand if, as today’s literal reading suggests and as a leading state decision holds, States remain free to apply their injunctive remedies against concerted activities in breach of contract, the development of a uniform body of federal contract law is in for hard times. So long as state courts remain free to grant the injunctions unavailable in federal courts, suits seeking relief against concerted activities in breach of contract will be channeled to the States whenever possible. Ironically, state rather than federal courts will be the preferred instruments to" } ]

[ { "docid": "8697073", "title": "", "text": "claims preempted by section 301 of the LMRA. Caterpillar Inc., 482 U.S. at 393, 107 S.Ct. 2425. Section 301 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. 29 U.S.C. § 185(a). Section 301 “governs claims founded directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective bargaining agreement.’ ” Caterpillar Inc., 482 U.S. at 394, 107 S.Ct. 2425 (quoting Elec. Workers v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987), and citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985)); see also Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). In Avco v. Aero Lodge No. 735, International Association of Machinists & Aerospace Workers, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), the plaintiff filed suit in state court alleging that it had a valid contract with the union and seeking to enjoin the union from violating the agreement through its participation in, and sanction of, work stoppages. More recently, the Court explained its approach in Avco to section 301 preemption: The Court of Appeals held ... and we affirmed ... that the petitioner’s action “arose under” § 301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy only under state law. The necessary ground of decision was that the preemptive force of § 301 is so powerful as to displace entirely any state cause of action “for violation of contracts between an employer and a labor organization.” Any such suit is purely a creature of federal law, notwithstanding the fact" }, { "docid": "22760364", "title": "", "text": "§185, as not only pre-empting state law but also authorizing removal of ac tions that sought relief only under state law. Avco Corp. v. Machinists, 390 U. S. 557 (1968). We later explained that holding as resting on the unusually “powerful” pre-emptive force of § 301: “The Court of Appeals held, 376 F. 2d, at 340, and we affirmed, 390 U. S., at 560, that the petitioner’s action ‘arose under’ § 301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy available only under state law. The necessary ground of decision was that the pre-emptive force of §301 is so powerful as to displace entirely any state cause of action ‘for violation of contracts between an employer and a labor organization.’ - Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Avco stands for the proposition that if a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law.” Franchise Tax Bd., 463 U. S., at 23-24 (footnote omitted). Similarly, in Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58 (1987), we considered whether the. “complete preemption” approach adopted in Avco also supported the removal of state common-law causes of action asserting improper processing of benefit claims under a plan regulated by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U. S. C. § 1001 et seq. For two reasons, we held that removal was proper even though the complaint purported to raise only state-law claims. First, the statutory text in § 502(a), 29 U. S. C. §1132, not only provided an express federal remedy for the plaintiffs’ claims, but also in its jurisdiction subsection, § 502(f), used language similar to the statutory language construed in Avco, thereby indicating that the two statutes should be construed in the" }, { "docid": "22391144", "title": "", "text": "a state tribunal would lead it into territory that Congress, in enacting §301, meant to be covered exclusively by arbitrators. This reasoning, however, mistakes both the functions § 301 serves in our national labor law and our prior decisions according that provision pre-emptive effect. To be sure, we have read the text of § 301 not only to grant federal courts jurisdiction over claims asserting breach of collective- bargaining agreements but also to authorize the development of federal common-law rules of decision, in large part to assure that agreements to arbitrate grievances would be enforced, regardless of the vagaries of state law and lingering hostility toward extrajudicial dispute resolution, see Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 455-456 (1957); see also Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574 (1960); Avco Corp. v. Machinists, 390 U. S. 557, 559 (1968) (“§301 . . . was fashioned by Congress to place sanctions behind agreements to arbitrate grievance disputes”). And in Teamsters v. Lucas Flour Co., 369 U. S. 95 (1962), we recognized an important corollary to the Lincoln Mills rule: while § 301 does not preclude state courts from taking jurisdiction over cases arising from disputes over the interpretation of collective-bargaining agreements, state contract law must yield to the developing federal common law, lest common terms in bargaining agreements be given different and potentially inconsistent interpretations in different jurisdictions. See 369 U. S., at 103-104. And while this sensible “acorn” of § 301 pre-emption recognized in Lucas Flour has sprouted modestly in more recent decisions of this Court, see, e. g., Lueck, supra, at 210 (“[I]f the policies that animate §301 are to be given their proper range ... the pre-emptive effect of § 301 must extend beyond suits alleging contract violations”), it has not yet become, nor may it, a sufficiently “mighty oak,” see Golden State I, 475 U. S., at 622 (Rehnquist, J., dissenting), to supply the cover the Commissioner seeks here. To the contrary, the pre-emption rule has been applied only to assure that the purposes animating § 301 will be" }, { "docid": "22668488", "title": "", "text": "purposes. It did not go so far as to provide that any suit against such parties must also be brought in federal court when they themselves did not choose to sue. The situation presented by a State’s suit for a declaration of the validity of state law is sufficiently removed from the spirit of necessity and careful limitation of district court juris diction that informed onr statutory interpretation in Shelly Oil and Gully to convince us that, until Congress informs us otherwise, such a suit is not within the original jurisdiction of the United States district courts. Accordingly, the same suit brought originally in state court is not removable either. B CLVT also argues that appellant’s “causes of action” are, in substance, federal claims. Although we have often repeated that “the party who brings a suit is master to decide what law he will rely upon,” The Fair v. Kohler Die & Specialty Co., 228 U. S. 22, 25 (1913), it is an independent corollary of the well-pleaded complaint rale that a plaintiff may not defeat removal by omitting to plead necessary federal questions in a complaint, see Avco Corp. v. Aero Lodge No. 735, Int’l Assn. of Machinists, 376 F. 2d 337, 339-340 (CA6 1967), aff’d, 390 U. S. 557 (1968). CLVT’s best argument stems from our decision in Avco Corp. v. Aero Lodge No. 735. In that case, the petitioner filed suit in state court alleging simply that it had a valid contract with the respondent, a union, under which the respondent had agreed to submit all grievances to binding arbitration and not to cause or sanction any “work stoppages, strikes, or slowdowns.” The petitioner further alleged that the respondent and its officials had violated the agreement by participating in and sanctioning work stoppages, and it sought temporary and permanent injunctions against further breaches. App., O. T. 1967, No. 445, pp. 2-9. It was clear that, had petitioner invoked it, there would have been a federal cause of action under §301 of the Labor Management Relations Act, 1947 (LMRA), 29 U. S. C. § 185, see Textile Workers" }, { "docid": "22624770", "title": "", "text": "to reconsider the decision. Helvering v. Hallock, supra, at 119-120. Ill From the time Textile Workers Union v. Lincoln Mills, 353 U. S. 448 (1957), was decided, we have frequently found it necessary to consider various substantive and procedural aspects of federal labor contract law and questions concerning its application in both state and federal courts. Lincoln Mills held generally that “the substantive law to apply in suits under § 301 (a) is federal law, which the courts must fashion from the policy of our national labor laws,” 353 U. S., at 456, and more specifically that a union can obtain specific performance of an employer’s promise to arbitrate grievances. We rejected the contention that the anti-injunction proscriptions of the Norris-LaGuardia Act prohibited this type of relief, noting that a refusal to arbitrate was not “part and parcel of the abuses against which the Act was aimed,” id., at 458, and that the Act itself manifests a policy determination that arbitration should be encouraged. See 29 U. S. C. § 108. Subsequently in the Steelworkers Trilogy we emphasized the importance of arbitration as an instrument of federal policy for resolving disputes between labor and management and cautioned the lower courts against usurping the functions of the arbitrator. Serious questions remained, however, concerning the role that state courts were to play in suits involving collective-bargaining agreements. Confronted with some of these problems in Charles Dowd Box Co. v. Courtney, 368 U. S. 502 (1962), we held that Congress clearly intended not to disturb the pre-existing jurisdiction of the state courts over suits for violations of collective-bargaining agreements. We noted that the “clear implication of the entire record of the congressional debates in both 1946 and 1947 is that the purpose of conferring jurisdiction upon the federal district courts was not to displace, but to supplement, the thoroughly considered jurisdiction of the courts of the various States over contracts made by labor organizations.” Id., at 511. Shortly after the decision in Dowd Box, we sustained, in Teamsters Local 174 v. Lucas Flour Co., 369 U. S. 95 (1962), an award of damages" }, { "docid": "22668490", "title": "", "text": "v. Lincoln Mills, 353 U. S. 448 (1957), and that, even in state court, any action to enforce an agreement within the scope of § 301 would be controlled by federal law, see Teamsters v. Lucas Flour Co., 369 U. S. 95, 103-104 (1962). It was also clear, however, under the law in effect at the time, that independent limits on federal jurisdiction made it impossible for a federal court to grant the injunctive relief petitioner sought. See Sinclair Refining Co. v. Atkinson, 370 U. S. 195 (1962) (later overruled in Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235 (1970)). The Court of Appeals held, 376 F. 2d, at 340, and we affirmed, 390 U. S., at 560, that the petitioner’s action “arose under” §301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy available only under state law. The necessary ground of decision was that the pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action “for violation of contracts between an employer and a labor organization.” Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of §301. Avco stands for the proposition that if a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily “arises under” federal law. CLVT argues by analogy that ERISA, like §301, was meant to create a body of federal common law, and that “any state court action which would require the interpretation or application of ERISA to a plan document ‘arises under’ the laws of the United States.” Brief for Appellees 20-21. ERISA contains provisions creating a series of express causes of action in favor of participants, beneficiaries, and fiduciaries of ERISA-covered plans, as well as the Secretary of Labor. § 502(a), 29 U. S. C. § 1132(a). It may be" }, { "docid": "22760363", "title": "", "text": "S. 74 (1914). Thus, a defense that relies on the preclusive effect of a prior federal judgment, Rivet v. Regions Bank of La., 522 U. S. 470 (1998), or the pre-emptive effect of a federal statute, Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1 (1983), will not provide a basis for removal. As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim. Congress has, however, created certain exceptions to that rule. For example, the Price-Anderson Act contains an unusual pre-emption provision, 42 U. S. C. § 2014(hh), that not only gives federal courts jurisdiction over tort actions arising out of nuclear accidents but also expressly provides for removal of such actions brought in state court even when they assert only state-law claims. See El Paso Natural Gas Co. v. Neztsosie, 526 U. S. 473, 484-485 (1999). We have also construed §301 of the Labor Management Relations Act, 1947 (LMRA), 29 U. S. C. §185, as not only pre-empting state law but also authorizing removal of ac tions that sought relief only under state law. Avco Corp. v. Machinists, 390 U. S. 557 (1968). We later explained that holding as resting on the unusually “powerful” pre-emptive force of § 301: “The Court of Appeals held, 376 F. 2d, at 340, and we affirmed, 390 U. S., at 560, that the petitioner’s action ‘arose under’ § 301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy available only under state law. The necessary ground of decision was that the pre-emptive force of §301 is so powerful as to displace entirely any state cause of action ‘for violation of contracts between an employer and a labor organization.’ - Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Avco stands for the" }, { "docid": "22760378", "title": "", "text": "Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 10 (1983). Of critical importance here, the rejection of a federal defense as the basis for original federal-question jurisdiction applies with equal force when the defense is one of federal pre-emption. “By unimpeachable authority, a suit brought upon a state statute does not arise under an act of Congress or the Constitution of the United States because prohibited thereby.” Gully v. First Nat. Bank in Meridian, 299 U. S. 109, 116 (1936). “[A] case may not be removed to federal court on the basis of... the defense of pre-emption . . . .” Caterpillar, supra, at 393. To be sure, pre-emption requires a state court to dismiss a particular claim that is filed under state law, but it does not, as a general matter, provide grounds for removal. This Court has twice recognized exceptions to the well-pleaded-complaint rule, upholding removal jurisdiction notwithstanding the absence of a federal question on the face of the plaintiff’s complaint. First, in Avco Corp. v. Machinists, 390 U. S. 557 (1968), we allowed removal of a state-court action to enforce a no-strike clause in a collective-bargaining agreement. The complaint concededly did not advance a federal claim, but was subject to a defense of pre-emption under §301 of the Labor Management Relations Act, 1947 (LMRA), 29 U. S. C. § 185. The well-pleaded-complaint rule notwithstanding, we treated the plaintiff’s state-law contract claim as one arising under § 301, and held that the case could be removed to federal court. Avco, supra, at 560. The only support mustered by the Avco Court for its conclusion was a statement wrenched out of context from our decision in Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 457 (1957), that “[a]ny state law applied [in a § 301 case] will be absorbed as federal law and will not be an independent source of private rights.” To begin with, this statement is entirely unnecessary to the landmark holding in Lincoln Mills — that §301 not only gives federal courts jurisdiction to" }, { "docid": "22352887", "title": "", "text": "Section 301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U. S. C. § 185(a), states: “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, 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.” Over 30 years ago, this Court held that § 301 not only provides the federal courts with jurisdiction over controversies involving collective-bargaining agreements but also authorizes the courts to fashion “a body of federal law for the enforcement of these collective bargaining agreements.” Textile Workers v. Lincoln Mills of Alabama, 353 U. S. 448, 451 (1957). Since then, the Court has made clear that § 301 is a potent source of federal labor law, for though state courts have concurrent jurisdiction over controversies involving collective-bargaining agreements, Charles Dowd Box Co. v. Courtney, 368 U. S. 502 (1962), state courts must apply federal law in deciding those claims, Teamsters v. Lucas Flour Co., 369 U. S. 95 (1962), and indeed any state-law cause of action for violation of collective-bargaining agreements is entirely displaced by federal law under § 301, see Avco Corp. v. Machinists, 390 U. S. 557 (1968). State law is thus “preempted” by § 301 in that only the federal law fashioned by the courts under § 301 governs the interpretation and application of collective-bargaining agreements. In recent cases, we have recognized that the pre-emptive force of § 301 extends beyond state-law contract actions. In Allis-Chalmers Corp. v. Lueck, supra, we held that a state-law tort action against an employer may be pre-empted by § 301 if the duty to the employee of which the tort is a violation is created by a collective-bargaining agreement and without existence independent of the agreement. Any other result, we reasoned, would “allow parties to evade the requirements of §301 by relabeling their contract claims as claims for tortious breach of" }, { "docid": "8697074", "title": "", "text": "(1988). In Avco v. Aero Lodge No. 735, International Association of Machinists & Aerospace Workers, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), the plaintiff filed suit in state court alleging that it had a valid contract with the union and seeking to enjoin the union from violating the agreement through its participation in, and sanction of, work stoppages. More recently, the Court explained its approach in Avco to section 301 preemption: The Court of Appeals held ... and we affirmed ... that the petitioner’s action “arose under” § 301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy only under state law. The necessary ground of decision was that the preemptive force of § 301 is so powerful as to displace entirely any state cause of action “for violation of contracts between an employer and a labor organization.” Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Avco stands for the proposition that if a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily “arises under” federal law. Beneficial Nat’l Bank, 539 U.S. at 7, 123 S.Ct. 2058 (quoting Franchise Tax Bd. of California, 463 U.S. at 23-24, 103 S.Ct. 2841). The Court has decided that section 301 “not only provides federal-court jurisdiction over controversies involving collective-bargaining agreements, but also ‘authorizes federal courts to fashion a body of federal law’ for the enforcement of these collective bargaining agreements.” Lingle, 486 U.S. at 403, 108 S.Ct. 1877 (quoting Textile Workers v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957)). The Court has discussed the necessity of recognizing that section 301 effects complete preemption: The dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by" }, { "docid": "22760379", "title": "", "text": "Corp. v. Machinists, 390 U. S. 557 (1968), we allowed removal of a state-court action to enforce a no-strike clause in a collective-bargaining agreement. The complaint concededly did not advance a federal claim, but was subject to a defense of pre-emption under §301 of the Labor Management Relations Act, 1947 (LMRA), 29 U. S. C. § 185. The well-pleaded-complaint rule notwithstanding, we treated the plaintiff’s state-law contract claim as one arising under § 301, and held that the case could be removed to federal court. Avco, supra, at 560. The only support mustered by the Avco Court for its conclusion was a statement wrenched out of context from our decision in Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 457 (1957), that “[a]ny state law applied [in a § 301 case] will be absorbed as federal law and will not be an independent source of private rights.” To begin with, this statement is entirely unnecessary to the landmark holding in Lincoln Mills — that §301 not only gives federal courts jurisdiction to decide labor relations cases but also supplies them with authority to create the governing substantive law. Id., at 456. More importantly, understood in the context of that holding, the quoted passage in no way supports the proposition for which it is relied upon in Avco — that state- law claims relating to labor relations necessarily arise under § 301. If one reads Lincoln Mills with any care, it is clear beyond doubt that the relevant passage merely confirms that when, in deciding cases arising under §301, courts employ legal rules that overlap with, or are even explicitly borrowed from, state law, such rules are nevertheless rules of federal law. It is in this sense that “[a]ny state law applied [in a §301 case] will be absorbed as federal law” — in the sense that federally adopted state rules become federal rules, not in the sense that a state-law claim becomes a federal claim. Other than its entirely misguided reliance on Lincoln Mills, the opinion in Avco failed to clarify the analytic basis for its unprecedented" }, { "docid": "22711057", "title": "", "text": "whether § 301 of the Labor Management Relations Act preempts a state-law tort action for bad-faith delay in making disability-benefit payments due under a collective-bargaining agreement. II Congress’ power to pre-empt state law is derived from the Supremacy Clause of Art. VI of the Federal Constitution. Gibbons v. Ogden, 9 Wheat. 1 (1824). Congressional power to legislate in the area of labor relations, of course, is long established. See NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937). Congress, however, has never exercised authority to occupy the entire field in the area of labor legislation. Thus the question whether a certain state action is pre-empted by federal law is one of congressional intent. “‘The purpose of Congress is the ultimate touchstone.’” Malone v. White Motor Corp., 435 U. S. 497, 504 (1978), quoting Retail Clerks v. Schermerhom, 375 U. S. 96, 103 (1963). Congress did not state explicitly whether and to what extent it intended § 301 of the LMRA to pre-empt state law. In such instances courts sustain a local regulation “unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States.” Malone v. White Motor Corp., 435 U. S., at 504. The question posed here is whether this particular Wisconsin tort, as applied, would frustrate the federal labor-contract scheme established in § 301. III A Section 301 of the LMRA states: “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . may be brought in any district court of the United States having jurisdiction of the parties. ...” 29 U. S. C. § 185(a). In Textile Workers v. Lincoln Mills, 353 U. S. 448 (1957), the Court ruled that § 301 expresses a federal policy that the substantive law to apply in § 301 cases “is federal law, which the courts must fashion from the policy of our national labor laws.” Id., at 456. That seminal case understood" }, { "docid": "22608646", "title": "", "text": "exist as an independent source of private rights to enforce collective bargaining contracts.” 376 F. 2d 337, 340 (CA6 1967), aff’d, 390 U. S. 557 (1968). In affirming, we held that, when “[t]he heart of the [state-law] complaint [is] a . . . clause in the collective bargaining agreement,” id., at 558, that complaint arises under federal law: “[T]he pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action ‘for violation of contracts between an employer and a labor organization.’ Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301.” Franchise Tax Board, supra, at 23. B Caterpillar asserts that respondents’ state-law contract claims are in reality completely pre-empted §301 claims, which therefore arise under federal law. We disagree. Section 301 governs claims founded directly on rights created by collective-bargaining agreements, and also claims “substantially dependent on analysis of a collective-bargaining agreement.” Electrical Workers v. Hechler, 481 U. S. 851, 859, n. 3 (1987); see also Allis-Chalmers Corp. v. Lueck, 471 U. S. 202, 220 (1985). Respondents allege that Caterpillar has entered into and breached individual employment contracts with them. Section 301 says nothing about the content or validity of individual employment contracts. It is true that respondents, bargaining unit members at the time of the plant closing, possessed substantial rights under the collective agreement, and could have brought suit under § 301. As masters of the complaint, however, they chose not to do so. Moreover, contrary to Caterpillar’s assertion, see Reply Brief for Petitioner 10, respondents’ complaint is not substantially dependent upon interpretation of the collective-bargaining agreement. It does not rely upon the collective agreement indirectly, nor does it address the relationship between the individual contracts and the collective agreement. As the Court has stated, “it would be inconsistent with congressional intent under [§301] to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.” Allis-Chalmers Corp., supra, at 212. Caterpillar next relies on this Court’s decision in" }, { "docid": "22342380", "title": "", "text": "the basis of her status as a third-party beneficiary of the collective-bargaining agree ment and the Union’s breach of duties assumed under that agreement. The Court of Appeals did not review the District Court’s holding that the 6-month period of limitations adopted in DelCostello governs Hechler’s suit, because it concluded that respondent’s claim was not pre-empted under federal labor law. We believe it appropriate for the Court of Appeals to consider, in the first instance, whether the period of limitations adopted in DelCostello is applicable to Hechler’s claim. The judgment of the Court of Appeals for the Eleventh Circuit therefore is vacated, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. Section 301 of the Labor Management Relations Act, 1947 (LMRA) states: “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.” 29 U. S. C. § 185(a). See Teamsters v. Lucas Flour Co., 369 U. S. 95, 102 (1962), discussing Charles Dowd Box Co. v. Courtney, 368 U. S. 502 (1962). In Dowd, the Court impliedly referred to state courts as working with the federal courts “as there evolves in this field of labor management relations that body of federal common law of which Lincoln Mills spoke.” Id., at 514. The Court took care in Allis-Chalmers to define the precise limits of its holding. The rule there set forth is that, when a state-law claim is substantially dependent on analysis of a collective-bargaining agreement, a plaintiff may not evade the pre-emptive force of § 301 of the LMRA by casting the suit as a state-law claim. 471 U. S., at 220. The Court emphasized, however: “In extending the pre-emptive effect of § 301 beyond suits for breach of contract, it would be inconsistent with congressional intent under" }, { "docid": "22668489", "title": "", "text": "defeat removal by omitting to plead necessary federal questions in a complaint, see Avco Corp. v. Aero Lodge No. 735, Int’l Assn. of Machinists, 376 F. 2d 337, 339-340 (CA6 1967), aff’d, 390 U. S. 557 (1968). CLVT’s best argument stems from our decision in Avco Corp. v. Aero Lodge No. 735. In that case, the petitioner filed suit in state court alleging simply that it had a valid contract with the respondent, a union, under which the respondent had agreed to submit all grievances to binding arbitration and not to cause or sanction any “work stoppages, strikes, or slowdowns.” The petitioner further alleged that the respondent and its officials had violated the agreement by participating in and sanctioning work stoppages, and it sought temporary and permanent injunctions against further breaches. App., O. T. 1967, No. 445, pp. 2-9. It was clear that, had petitioner invoked it, there would have been a federal cause of action under §301 of the Labor Management Relations Act, 1947 (LMRA), 29 U. S. C. § 185, see Textile Workers v. Lincoln Mills, 353 U. S. 448 (1957), and that, even in state court, any action to enforce an agreement within the scope of § 301 would be controlled by federal law, see Teamsters v. Lucas Flour Co., 369 U. S. 95, 103-104 (1962). It was also clear, however, under the law in effect at the time, that independent limits on federal jurisdiction made it impossible for a federal court to grant the injunctive relief petitioner sought. See Sinclair Refining Co. v. Atkinson, 370 U. S. 195 (1962) (later overruled in Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235 (1970)). The Court of Appeals held, 376 F. 2d, at 340, and we affirmed, 390 U. S., at 560, that the petitioner’s action “arose under” §301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy available only under state law. The necessary ground of decision was that the pre-emptive force of § 301" }, { "docid": "13456795", "title": "", "text": "1235, 1237, 20 L.Ed.2d 126 (1968), the Court held that because state law claims for breach of collective bargaining agreements were so wholly preempted by section 301 of the Labor Management Relations Act of 1947, 29 U.S. C. § 185, that those preempted claims arose under section 301 and the federal court therefore could exercise removal jurisdiction under sections 1337 and 1441 over suits asserting such claims. The Court gave little explanation in its tersely worded decision, seeming to rely primarily on Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957), which held that Congress, in enacting section 301, intended for the federal courts to create a body of federal law “from the policy of our national labor laws” for the enforcement of collective bargaining agreements. In Franchise Tax Board, the Court further explained Avco: “The necessary ground of decision was that the preemptive force of § 301 is so powerful as to displace entirely any state cause of action ‘for violation of contracts between an employer and a labor organization.’ Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Avco stands for the proposition that if a federal cause of action completely preempts a state cause of action, any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law.” 103 S.Ct. at 2853-54 (footnote omitted). See also Eitmann, 730 F.2d at 365-66. Because section 301 preempts all state law claims that are “substantially dependent on analysis of a collective-bargaining agreement,” all state suits asserting such thus preempted state law claims are removable, Hechler, 107 S.Ct. at 2166-67. Despite the possible implications of the broad language in Franchise Tax Board, Avco remains a narrow exception to the general rule that preemption is a defensive issue that does not authorize removal of a case to federal court. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 1546-48, 95 L.Ed.2d 55 (1987), recognized" }, { "docid": "22625081", "title": "", "text": "not depend upon an interpretation of the agreement; on the contrary, the court concluded that “the same analysis of the facts” was implicated under both procedures. 823 F. 2d, at 1046. It took note of, and declined to follow, contrary decisions in the Tenth, Third, and Second Circuits. We granted certiorari to resolve the conflict in the Circuits. 484 U. S. 895 (1987). II Section 301(a) of the Labor Management Relations Act of 1947, 61 Stat. 156, 29 U. S. C. § 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 Act, 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.” In Textile Workers v. Lincoln Mills, 353 U. S. 448 (1957), we held that § 301 not only provides federal-court jurisdiction over controversies involving collective-bargaining agreements, but also “authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements.” Id., at 451. In Teamsters v. Lucas Flour Co., 369 U. S. 95 (1962), we were confronted with a straightforward question of contract interpretation: whether a collective-bargaining agreement implicitly prohibited a strike that had been called by the union. The Washington Supreme Court had answered that question by applying state-law rules of contract interpreta tion. We rejected that approach, and held that §301 mandated resort to federal rules of law in order to ensure uniform interpretation of collective-bargaining agreements, and thus to promote the peaceable, consistent resolution of labor-management disputes. In Allis-Chalmers Corp. v. Lueck, 471 U. S. 202 (1985), we considered whether the Wisconsin tort remedy for bad-faith handling of an insurance claim could be applied to the handling of a claim for disability benefits that were authorized by a collective-bargaining agreement. We began by examining the collective-bargaining agreement, and determined that it provided the basis not only for the benefits, but also for the right to" }, { "docid": "22711058", "title": "", "text": "“unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States.” Malone v. White Motor Corp., 435 U. S., at 504. The question posed here is whether this particular Wisconsin tort, as applied, would frustrate the federal labor-contract scheme established in § 301. III A Section 301 of the LMRA states: “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . may be brought in any district court of the United States having jurisdiction of the parties. ...” 29 U. S. C. § 185(a). In Textile Workers v. Lincoln Mills, 353 U. S. 448 (1957), the Court ruled that § 301 expresses a federal policy that the substantive law to apply in § 301 cases “is federal law, which the courts must fashion from the policy of our national labor laws.” Id., at 456. That seminal case understood §301 as a congressional mandate to the federal courts to fashion a body of federal common law to be used to address disputes arising out of labor contracts. The pre-emptive effect of § 301 was first analyzed in Teamsters v. Lucas Flour Co., 369 U. S. 95, 103 (1962), where the Court stated that the “dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute [so that] issues raised in suits of a kind covered by § 301 [are] to be decided according to the precepts of federal labor policy. ” The Court concluded that “in enacting §301 Congress intended doc trines of federal labor law uniformly to prevail over inconsistent local rules.” Id., at 104. The Lucas Flour Court specified why the meaning given to terms in collective-bargaining agreements must be determined by federal law: “[T]he subject matter of § 301(a) ‘is peculiarly one that calls for uniform law.’. . . The possibility that individual contract terms might have different" }, { "docid": "22608645", "title": "", "text": "law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law. See Franchise Tax Board, supra, at 24 (“[I]f a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law”). The complete pre-emption corollary to the well-pleaded complaint rule is applied primarily in cases raising claims preempted by § 301 of the LMRA. Section 301 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 of the amount in controversy or without regard to the citizenship of the parties.” 29 U. S. C. § 185(a). In Avco Corp. v. Machinists, the Court of Appeals decided that “[s]tate law does not exist as an independent source of private rights to enforce collective bargaining contracts.” 376 F. 2d 337, 340 (CA6 1967), aff’d, 390 U. S. 557 (1968). In affirming, we held that, when “[t]he heart of the [state-law] complaint [is] a . . . clause in the collective bargaining agreement,” id., at 558, that complaint arises under federal law: “[T]he pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action ‘for violation of contracts between an employer and a labor organization.’ Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301.” Franchise Tax Board, supra, at 23. B Caterpillar asserts that respondents’ state-law contract claims are in reality completely pre-empted §301 claims, which therefore arise under federal law. We disagree. Section 301 governs claims founded directly on rights created by collective-bargaining agreements, and also claims “substantially dependent on analysis of a collective-bargaining agreement.” Electrical Workers v. Hechler, 481 U. S. 851," }, { "docid": "7376715", "title": "", "text": "101 S.Ct. 1559, 67 L.Ed.2d 732 (1981); DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). In the Third Count of plaintiff's complaint, she alleges 2. On or about November 13, 1984, plaintiff Ramona Cole was a member of UFW Local 1262 of the AFNCIO and, as such, was subject to an agreement between the said union and the defendants Pathmark and Supermarkets General Corporation. 4. In contravention of her contractual and legal rights plaintiff was fired without good cause____ Complaint at 4. Plaintiff’s assertion that this claim for damages for defendants’ breach of her employment contract does not arise under § 301 of the collective bargaining agreement is clearly contrary to the Supreme Court’s statements as to § 301’s preemptive effect. Preemption under § 301 was addressed by the Supreme Court in Avco Corp. v. Aero Lodge No. 735, Int’l Assn. of Machinists and Aerospace Workers, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), which decision, the Court later explained, affirmed that the petitioner’s action ‘arose under’ § 301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy available only under state law. The necessary ground of decision was that the pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action ‘for violation of contracts between an employer and a labor organization.’ Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 23, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1983); see also Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). Thus, it is plain that in the present case, plaintiff’s claim for breach of her employment contract does arise under § 301. A much harder question is whether plaintiff’s tort claims in the First, Second and" } ]

[ { "docid": "9616309", "title": "", "text": "allowances under 18 U.S.C. § 4161. Some of this good time had been forfeited earlier but had been restored. In 1965, while Williams was on release, he violated his parole and was arrested and recommitted. He was again mandatorily released on August 3, 1966, with 1,950 days of his reduced sentence unserved. Again he violated his parole and was rearrested June 30, 1967. His good time was forfeited and he has remained confined since then. His sentence now expires full term on October 30, 1972, but with further good time allowances he is subject to release on January 29, 1971. Williams’ complaint here is that there is a distinction between mandatory release and conditional release; that his allowances under § 4161 had vested at the' time of his mandatory release on December 10, 1964; that these allowances cannot be taken away from him and are not subject to forfeiture; and that, as a consequence, he is unlawfully confined. It is to be observed that, so far as the record discloses, the petitioner’s difficulties arose not when he was confined in prison but when he was on release. We note, in passing, that Williams applied for similar relief in the District of Kansas while he was at Leavenworth. This was denied by Chief Judge Stanley on January 8, 1968. Apparently no appeal was taken. We necessarily affirm on the basis of Judge Becker’s memorandum. In the hope that we may make it clear to this petitioner, we reiterate and reemphasize, for his benefit: (1) Section 4164 is applicable to a military prisoner. Mitchell v. Kennedy, 344 F.2d 935, 936 (10 Cir. 1965), cert, denied, 382 U.S. 920, 86 S.Ct. 299, 15 L.Ed.2d 234; Osborne v. Taylor, 328 F.2d 131, 132 (10 Cir. 1964), cert. denied, 377 U.S. 1002, 84 S.Ct. 1936, 12 L.Ed.2d 1051, (2) Section 4164 clearly and specifically provides that a prisoner on good time release “shall * * * be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced” less 180 days. (3) Williams’ parole violations took" } ]

[ { "docid": "800866", "title": "", "text": "PER CURIAM: Appellant, who is confined in a federal penitentiary, challenges the right of the government to deny him credit for the accumulated good conduct time he earned prior to release on parole and his violation thereof. See 18 U.S.C. § 4161. The appellant contends that 18 U.S.C. § 4165 is the sole statutory authority whereunder his good time credits can be forfeited. That section provides for forfeiture in event of misconduct by a convict while he is imprisoned. The statute which governs the appellant’s case is 18 U.S.C. § 4207, providing in pertinent part as follows: If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced. See also 18 U.S.C. § 4205. The appellant does not contend that he was denied administrative due process nor that his parole was revoked without good cause, although he mentions that state burglary charges which resulted from his actions while on parole have been dismissed. The appellant failed to allege grounds which would entitle him to relief. See Clark v. Blackwell, 5th Cir. 1967, 374 F.2d 952; Buchanan v. Blackwell, 5th Cir. 1967, 372 F.2d 451; Smith v. Blackwell, 5th Cir. 1966, 367 F.2d 639; Smoake v. Willingham, 10th Cir. 1966, 359 F.2d 386; Wooten v. Wilkinson, 5th Cir. 1959, 265 F.2d 211. Therefore, the district court did not err in denying the habeas corpus petition. Affirmed. . Pursuant to new Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See, Murphy v. Houma Well Service, 5th Cir. 1969, 409 F.2d 804." }, { "docid": "7471252", "title": "", "text": "November 18, 1983 for his “non-peripheral role” in a drug conspiracy and importation. The Commission determined that John, like Skowronek, was required to serve one-third of his sentence before becoming eligible for parole, and set John’s presumptive parole date for February 4, 1993. 18 U.S.C. § 4205(a). The parole guidelines for John’s crimes had been calculated at 40-52 months. John is also presently incarcerated at the Federal Correctional Institute in Oxford, Wisconsin. At this time, both Skowronek and John have served time beyond the maximum calculated by the parole guidelines for their respective crimes, but each still has a number of months to serve before reaching the statutory minimum of one-third of his original sentence. After appellants’ incarceration began, Congress passed the Comprehensive Crime Control Act of 1984, (“CCCA”), Title II, Pub.L. 98-473, 98 Stat. 1976 (1984). Chapter II of this Act, entitled the Sentencing Reform Act of 1984 (“SRA”), took effect on November 1, 1987. See Sentencing Reform Amendments of 1985, Pub.L. 99-217, § 4, 99 Stat. 1728 (1985); Kimberlin v. Brewer, 825 F.2d 1157, 1158 (7th Cir.1987). The SRA abolished parole and the Parole Commission by repealing the parole provisions codified at 18 U.S.C. § 4201 et seq. CCCA, Pub.L. 98-473, ch. II, § 218(a)(5), 98 Stat. 2027 (1984). However, the SRA’s “savings provision” extended the life of the Commission and parole provisions “for five years after the effective date as to an individual convicted of an offense ... before the effective date....” CCCA, Pub.L. 98-473, ch. II, § 235(b)(1)(A), 98 Stat. 2032 (1984) (emphasis added). In the originally enacted SRA, Congress ordered the Commission to set a release date, for an individual who will be in its jurisdiction the day before the expiration of five years after the effective date of this Act, that is within the range that applies to the prisoner under the applicable parole guideline. A release date set pursuant to this paragraph shall be set early enough to permit consideration of an appeal of the release date, in accordance with Parole Commission procedures, before the expiration of five years following the effective date" }, { "docid": "2084784", "title": "", "text": "prior to revocation so that he may be prepared to respond. 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972); see Vanes, 741 F.2d at 1202 (applying Morrissey to street time hearing). Where Morrissey has been violated, this court has held that “the district court should require the [Parole] Commission to hold a new revocation hearing and to provide [the petitioner] with notice of the information and witnesses which the Commission weighs against him.” Vargas v. U.S. Parole Comm’n, 865 F.2d 191, 195 (9th Cir.1988). It is true that issuance of the writ was not conditioned on remand to the Commission for a noticed rehearing in Raines and Vanes, but the availability of this remedy does not appear to have been suggested in either case. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. . 18 U.S.C. § 4214(a)(2)(A) provides in pertinent part: Hearings ... shall be conducted by the Commission in accordance with the following procedures: (A) notice to the parolee of the conditions of parole alleged to have been violated, and the time, place, and purposes of the scheduled hearing.... In addition, 18 U.S.C. § 4213(c)(3) states: Any summons or warrant issued pursuant to this section shall provide the parolee with written notice of— (3) the possible action which may be taken by the Commission. Pub.L. 98-473, Title II, §§ 218(a)(5), 235, Oct. 12, 1984, 98 Stat. 2027, 2031, repealed sections 4213 and 4214 as of November 1, 1986. Sections 4213 and 4214 were therefore in effect at the time of Jessup's parole revocation hearing. . 28 CFR § 2.52(c)(2) reads in pertinent part: If the parolee has been convicted of a new offense committed subsequent to his release [on] parole, which is punishable by a term of imprisonment, forfeiture of the time from the date of such release to execution of the warrant shall be ordered, and such time shall not be credited to the service of the sentence." }, { "docid": "12808445", "title": "", "text": "“any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed.\" Plainly a civil contempt confinement is not within these categories, and the legislative history of this revision gives no indication whatever that Congress believed it was enacting any change affecting civil contempt confinement. See S.Rep. No. 225, 98th Cong., 2d Sess., 128-29, reprinted in 1984 USCCAN 3182, 8311-12. For all of the foregoing reasons, we conclude that § 3568 does not require that a person sentenced to prison for criminal contempt be given credit on that sentence for any time, prior to his indictment on that charge, that he spent in civil contempt. B. The Commission's Reliance on the Arocena Hearsay We also reject Ochoa's contentions that the Commission's reliance on the Arocena hearsay was improper because (1) Fed.R. Crim.P. 32(c)(3)(D) prohibits reliance on any material not relied on by the sentencing judge, and (2) due process prohibits reliance on hearsay. In making parole decisions, the Commission is required by statute to consider all available relevant information concerning the prisoner, including presentence investigation reports. See 18 U.S.C. § 4207 (1982) (repealed effective November 1, 1987, Pub.L. 98-473, tit. II, §~ 218(a)(5), 235(a)(1), 98 Stat. 2027, 2031 (1984), as amended). In part because the Commission and other correctional authorities rely on these reports, Rule 32(c)(3)(D) requires that if the defendant alleges that the report is factually inaccurate, the sentencing court must either make written findings concerning any matter controverted or state that that matter will not be taken into consideration at sentencing, and it must append to the report a copy of its determinations. Although a principal purpose of this Rule is to provide correctional authorities with a clear record of the court's treatment of such disputed matters, see United States v. Ursillo, 786 F.2d 66, 71 (2d Cir.1986); United States v. Eschweiler, 782 F.2d 1385, 1387-88 & n. 7 (7th Cir.1986); United States v. Petitto, 767 F.2d 607, 609 (9th Cir.1985), the Rule does not purport to prescribe how the nonjudicial authorities may treat the record it creates. Like" }, { "docid": "3404605", "title": "", "text": "parole and was returned to the Medical Center at Springfield, Missouri, where he is presently confined. The petitioner overlooks the provision of § 4207, Title 18 U.S.C., providing that a parole violator forfeits his good time earned: “If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.” (Emphasis supplied.) Petitioner also overlooks § 4205, Title 18 U.S.C., providing that the time he enjoyed on parole does not count in reduction of his sentence: “ * * * [T]he time the prisoner was on parole shall not diminish the time he was sentenced to serve.” As stated in Smith v. Blackwell, 367 F.2d 539, 541 (5th Cir. 1966) : “ * * * [B]y violating parole, a prisoner forfeits all credit for good conduct time accumulated prior to re lease and all credit for time on parole, and must serve the full unexpired term of the original sentence. 18 U.S.C. § 4205 * * *.” See also: Clark v. Blackwell, 374 F.2d 952 (5th Cir. 1967); McKinney v. Taylor, 358 F.2d 689 (10th Cir. 1966). Moreover, it is generally recognized that a prisoner such as the petitioner must first exhaust his administrative remedies by applying to the Director of the Bureau of Prisons, and thereafter seek relief by way of habeas corpus in the district in which he is incarcerated. Smoake v. Willingham, 359 F.2d 386 (10th Cir. 1966). The petitioner here does not allege nor contend that he has exhausted his administrative procedures or remedies. A petition under § 2255, Title 28 U.S.C., presented to the sentencing court is an inappropriate remedy, and a petition for habeas corpus brought in the district of confinement can offer no relief until his administrative remedies have been exhausted. Petitioner asserts that he is “entitled to 4 months and 13 days jail time deductions from each of the sentence [sic] but I have not been given credit for the jail time”. The credit for time spent in custody" }, { "docid": "3944344", "title": "", "text": "date may be rescinded. We conclude that post-Drayton decisions of the Supreme Court and this Court have not undermined Drayton’s analysis, and, accordingly, we affirm the judgment of the district court. I. BACKGROUND Under the federal parole system as it presently exists, see 18 U.S.C. §§ 4201-4218 (1982) (repealed effective Nov. 1, 1987, Pub.L. No. 98-473, tit. II, §§ 218(a)(4), 235(a)(1), 98 Stat. 2027, 2031 (1984), as amended by Pub.L. No. 99-217, § 4, 99 Stat. 1728 (1985)), the Commission conducts an initial parole hearing for most prisoners shortly after their incarceration, 18 U.S.C. § 4208(a), following which the Commission may set an “effective date of parole,” i.e., a date not more than six months away, 28 C.F.R. §§ 2.1(h), 2.12(b) (1986), or set a presumptive parole date as much as 15 years away, id. § 2.12(b), or schedule a hearing for reconsideration after 15 years, id. If an “effective date of parole” (which we also refer to as an “early release date”) is not set at the initial hearing, it may be set at a subsequent hearing. 18 U.S.C. § 4208(h); 28 C.F.R. § 2.14 (1986). Plaintiffs Theodore Green and Daniel Porter commenced this suit, on behalf of themselves and others similarly situated, as federal prisoners incarcerated within the District of Connecticut whose early release dates had been set by the Commission but who had not yet been released from prison (“parole grantees”). At issue in this case are the hearing procedures to be followed when, after an early release date has been set but prior to the arrival of that date, the Commission is notified that the parole grantee has been guilty of new misconduct or receives other new unfavorable information and wishes to consider whether to rescind the early release date. A. Drayton and its District Court Predecessors In 1972, the Supreme Court ruled that a parolee, i.e., one already released from prison on parole, had certain due process rights that must be respected before his parole could be revoked. These included the right to written notice of claimed parole violations, disclosure of the evidence against him," }, { "docid": "400536", "title": "", "text": "has not been held, a mandamus action to compel compliance would be appropriate, coupled with appropriate sanctions against the non complying officials. In accordance with the foregoing, Lambert’s release request is denied. Lambert’s next argument concerns forfeiture of good time credits and credit for time spent on conditional release by those who have had their mandatory release revoked. Under 18 U.S.C. § 4164 (1976), a prisoner given mandatory release would “be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced” less 180 days. Under the pre-1976 law, it is clear that a parole violator could lose both good time credits and credit for time spent on conditional release. 18 U.S.C. §§ 4205, 4207 (1970); Coronado v. United States, 540 F.2d 216, 218 (5th Cir. 1976); Blanchard v. United States, 433 F.2d 13 (5th Cir. 1970). Under the Parole Commission and Reorganization Act, sections 4205 and 4207 were substantially changed and include no similar forfeiture provisions. Nonetheless, absent some legislative indication to the contrary, we will not upset the well-settled rule that once the appellant’s release was revoked because of his violation of its conditions the U.S.P.C. had the authority to forfeit the appellant’s good-time credit as well as credit for time spent on conditional release. Lazard v. United States, 583 F.2d 176, 177 (5th Cir. 1978); Coronado v. United States, 540 F.2d 216, 218 (5th Cir. 1976); Henning v. United States Bureau of Prisons, 472 F.2d 1221, 1222 (5th Cir. 1973); Smith v. Blackwell, 367 F.2d 539, 541 (5th Cir. 1966). Lambert’s third claim questions the propriety of holding a joint dispositional review — parole revocation hearing. He argues that he and his counsel were unfairly surprised by a parole revocation hearing, or revocation-disposition hearing when they were expecting only a dispositional review. This argument is meritless for several reasons. First, the detainer was executed on January 13, 1978. At that time, the only appropriate administrative proceeding would be a parole revocation hearing. 18 U.S.C. § 4214(c) (1976). A dispositional review would not have been appropriate since he was" }, { "docid": "12808446", "title": "", "text": "available relevant information concerning the prisoner, including presentence investigation reports. See 18 U.S.C. § 4207 (1982) (repealed effective November 1, 1987, Pub.L. 98-473, tit. II, §~ 218(a)(5), 235(a)(1), 98 Stat. 2027, 2031 (1984), as amended). In part because the Commission and other correctional authorities rely on these reports, Rule 32(c)(3)(D) requires that if the defendant alleges that the report is factually inaccurate, the sentencing court must either make written findings concerning any matter controverted or state that that matter will not be taken into consideration at sentencing, and it must append to the report a copy of its determinations. Although a principal purpose of this Rule is to provide correctional authorities with a clear record of the court's treatment of such disputed matters, see United States v. Ursillo, 786 F.2d 66, 71 (2d Cir.1986); United States v. Eschweiler, 782 F.2d 1385, 1387-88 & n. 7 (7th Cir.1986); United States v. Petitto, 767 F.2d 607, 609 (9th Cir.1985), the Rule does not purport to prescribe how the nonjudicial authorities may treat the record it creates. Like other rules of federal criminal procedure, Rule 32 governs only proceedings in federal courts, not in agencies of the Executive Branch. See Fed.R. Crim.P. 1; Kramer v. Jenkins, 803 F.2d 896, 899 (7th Cir.1986), clamfied on reh q, 806 F.2d 140 (per curiam). Where, as in the present case, the sentencing court has chosen to comply with the Rule by disclaiming reliance on contested statements, the Commission is free to use the disclaimed portion of the report if it finds the information sufficiently accurate for its own purposes. See Kramer v. Jenkins, 803 F.2d at 900; cf. Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir.1976) (Commission may consider all matters bearing upon the prisoner's personal history and behavior, including unad-judicated charges and evidence of crimes of which he was acquitted). Unlike a finding of falsity, which might bind the Commission under familiar principles of res judica-ta, the court's mere refusal to rely on a statement reflects only its conclusion that it has found the information questionable or irrelevant for purposes" }, { "docid": "3404604", "title": "", "text": "other respects the sentences conformed with the Constitution and laws of the United States. The court had jurisdiction. Other than the allegation that he has not been given credit for jail time, no other collateral attack is made. No reasons are set forth which would authorize the court to vacate or set aside the sentences. Instead this petitioner asserts in his letters that the Bureau of Prisons has not properly computed his prison time, and since it is impossible for the Bureau to determine which sentence is being served, the sentences must be given concurrent effect. He cites §§ 4161 and 4163, Title 18 U.S.C. Contrary to the petitioner’s contentions the consecutive sentences are certain and unambiguous. They are clear, definite and so complete as to need no construction or supplementary interpretation by a court or ministerial officer. Their sequence is plain as is the beginning and ending of each sentence. It appears that the petitioner was paroled on April 6, 1966, and from the petitioner’s letters it seems evident that he subsequently violated his parole and was returned to the Medical Center at Springfield, Missouri, where he is presently confined. The petitioner overlooks the provision of § 4207, Title 18 U.S.C., providing that a parole violator forfeits his good time earned: “If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.” (Emphasis supplied.) Petitioner also overlooks § 4205, Title 18 U.S.C., providing that the time he enjoyed on parole does not count in reduction of his sentence: “ * * * [T]he time the prisoner was on parole shall not diminish the time he was sentenced to serve.” As stated in Smith v. Blackwell, 367 F.2d 539, 541 (5th Cir. 1966) : “ * * * [B]y violating parole, a prisoner forfeits all credit for good conduct time accumulated prior to re lease and all credit for time on parole, and must serve the full unexpired term of the original sentence. 18 U.S.C." }, { "docid": "3127994", "title": "", "text": "at the period at which a prisoner is eligible for release from federal custody is: actual time served plus good time earned should equal the entire sentence or sentences imposed on the prisoner. Wooten v. Wilkinson, 5 Cir., 1959, 265 F.2d 211; Northcutt v. Wilkinson, 5 Cir., 1959, 266 F.2d 2. There is nothing in the Board’s rules which limits or prohibits the granting by the Board of a so-called “remandatory release.” Such a release is actually a parole granted under the discretion of the Board at a time prior to the recomputed statutory mandatory release date. Obviously, mandatory release and remandatory release are not the same. Nor is it necessary that forfeiture of good time (in this case the originally earned 898 days) be revoked in order for the Board to grant the remandatory release which was issued to appellant on October 4, 1966. The record does not disclose that there was a revocation of the forfeiture of good time prior to the prisoner’s release on October 4, 1966, and we find nothing in the rules that requires an interpretation by us that this occurred by operation of law or otherwise. It is, therefore, clear to us that when appellant was retaken on December 19, 1967, it was at a time when he was still under parole supervision and, therefore, that his present imprisonment is fully authorized by law and the rules of the United States Board of Parole. Affirmed. . 18 U.S.C. § 4163 reads in pertinent part as follows: “§ 4163. Discharge “Except as hereinafter provided a prisoner shall be released at the expiration of his term of sentence less the time deducted for good conduct. * * * ” . Good time was computed under the provisions of 18 U.S.C. § 4161, which reads in pertinent part as follows: “§ 4161. Computation generally “Each prisoner convicted of an offense against the United States and confined in a penal or correctional institution for a definite term other than for life, whose record of conduct shows that he has faithfully observed all the rules and has not been" }, { "docid": "11811338", "title": "", "text": "388, 390 n.1, 408, 100 S.Ct. 1202, 1205 n. 1, 1214-15, 63 L.Ed.2d 479 (1980); United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2239-40, 60 L.Ed.2d 805 (1979). In each of those cases, the Court found it unnecessary to address any part of the ex post facto issue. . Parole Commission and Reorganization Act, ch. 311, 90 Stat. 219 (1976) (codified as amended at 18 U.S.C.A. §§ 4201-4218 (West 1985)) (repealing and replacing Act of June 25, 1948, P.L. 80-722, ch. 311, §§ 4201-4207, 62 Stat. 683, 854-55, and Act of Aug. 25, 1958, P.L. 85-752, §§ 3-5, 72 Stat. 845-47 (both codified as amended at 18 U.S.C. §§ 4201-4209 (1970)) (repealed 1976)). The Sentencing Reform Act of 1984 abolishes the parole system and replaces the current sentencing process with a system of sentencing guidelines, effective November 1, 1986. P.L. 98-473, tit. II, ch. II, 98 Stat. 1987; id. at § 218(a)(5), 98 Stat. 2027 (repealing chapter 311, currently codified as amended at 18 U.S. C.A. §§ 4201-4218 (West 1985)). The Parole Commission and current law provisions relating to parole are to remain in effect for five years after the effective date of the Sentencing Reform Act as to any individual convicted of an offense before the effective date of the Act in order to deal with sentences imposed under current sentencing practices. Id. § 235(b)(1), 98 Stat. 2032. . The statute in effect at the time Hayward committed his offense provided in pertinent part: If it appears to the Board of Parole from a report by the proper institutional officers or upon application by a prisoner eligible for release on parole, that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole. 18 U.S.C. § 4203(a) (1970) (emphasis added) (repealed 1976). . Here the Commission observes that, since Yamamoto's offense involved smuggling more than sixty times" }, { "docid": "23060440", "title": "", "text": "and other law enforcement officials so that they may work together and share information to achieve their objectives. Accordingly, the order of the District Court denying defendant Reyes’s motion to suppress is affirmed. . Both the 2000 and 2001 editions of the U.S. Sentencing Guidelines Manual § 5 D 1.3(c) (10) provide: (c) (Policy Statement) The following \"standard” conditions are recommended for supervised release!)] • ■ • (10) the defendant shall permit a probation officer to visit the defendant at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer. (emphasis added). . Parole was abolished in the federal criminal justice system as of November 1, 1987. Sentencing Reform Act of 1984, Pub.L. No. 98-473, Tit. II, §§ 218(a)(5), 235(a)(1), 98 Stat 1837, 2027, 2031, as amended by Sentencing Amendments Reform Act of 1985, Pub.L. No. 99-217, § 4, 99 Stat 1728; see also 18 U.S.C. ch. 311, §§ 4201-4218. However, the United States Parole Commission will remain in existence until November 1, 2002, unless this expiration date is extended. Parole Commission Phaseout Act of 1996, Pub.L. No. 104-232, § 2(a), 110 Stat. 3055; see also Cohen, ante, § 1:12, at 1-21. “Since the repeal of the parole statutes, the [United States Parole Commission] supervises inmates convicted before repeal by enlisting [United States] probation officers to perform the functions of parole officers.” Wilson v. United States, 959 F.2d 12, 15 (2d Cir.1992) (citations omitted). It is expected that \"defendants sentenced ... for criminal conduct that occurred before [the] abolition [of parole] will be released from prison [on parole by the United States Parole Commission] under the supervision of [a United States] probation officer well into the [twenty-first] century. In contrast to persons on ... supervised release who are under the jurisdiction of the sentencing court, individuals released on parole ... remain in the legal custody of the Attorney General while serving a portion of their sentence of imprisonment in the community.” John P. Storm, What United States Probation Officers Do, 61 Fed. Probation 13, 15 (March 1997); see also" }, { "docid": "16702695", "title": "", "text": "the term. 18 U.S.C. § 3568 (1982) (repealed effective Nov. 1, 1987, by Pub.L. No. 98-473, tit. II, §§ 212(a)(2), 235(a)(1), 98 Stat. 1987, 2031 (1984), as amended by Pub.L. No. 99-217, § 4, 99 Stat. 1728 (1985) and Pub.L. No. 100-182, § 2, 101 Stat. 1266 (1987); amended, and reenacted in part as 18 U.S.C. § 3585 effective Nov. 1, 1987, by the same legislation). Except in one circumstance not relevant here, see United States v. Gaines, 449 F.2d 143, 144 (2d Cir.1971) (credit granted where defendant was unable to enter federal custody “solely because he lacked sufficient funds to post bond in the state court which held him in custody”), courts have uniformly interpreted the language of § 3568 and its predecessors as precluding the calculation of the time served on a federal sentence from any date other than that on which the defendant was delivered to federal prison officials. Thus, even state prisoners whose state sentences have been vacated have been held not entitled to credit on unrelated federal sentences. See, e.g., Scott v. United States, 434 F.2d 11, 21 (5th Cir.1970); Green v. United States, 334 F.2d at 736; see also Emig v. Bell, 456 F.Supp. 24, 26 (D.Conn.1978) (Newman, J.) (“The starting point ... is the fundamental proposition that time served on an unrelated state sentence that has been voided cannot be credited against a federal sentence.”). Application of these principles requires affirmance of the denial of Pinaud’s motion to compel federal prison officials to deduct 828 days from his federal sentences. Although the record is silent as to whether Pinaud — who apparently was represented by the same attorney with respect to all three of his sentences — urged Judges McCurn and Altimari to make his federal sentences concurrent with his state sentence, it is immaterial whether he did so or not. If he did, it was, as we have discussed above, well within the discretion of the district judges to reject his request. And if he did not, “he has no complaint.” Salley v. United States, 786 F.2d at 549 (Newman, J, concurring)." }, { "docid": "17575472", "title": "", "text": "right to voluntary witnesses until May 1962. . The Declaration of Principles of the American Correctional Association (1960), states: “With a few possible exceptions, all offenders released from correctional institutions should be released under parole-supervision, and parole should be granted at the earliest date consistent with public safety and the needs of rehabilitation. Decisions pertaining to an individual’s parole should be made by a professionally competent board. The type and degree of supervision should be adopted to the-needs of the individual offender.” . However, judgment is exercised in determining “good time” credit. . 18 U.S.C. § 4207 “Revocation upon retaking parolee “A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board. “The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the terms and conditions thereof. “If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.” . Compare the statutory authority of the Parole Board vis-a-vis parole revocation, 18 U.S.C. §§ 4201-4210, with that of the various District Courts vis-a-vis probation revocation, 18 U.S.C. §§ 3651-3653. Note the breadth of the District Court’s authority: “As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require Mm to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.” 18 U.S.C. § 3653. Similarly, the Parole Board, in revoking parole, may require the parolee “to serve all or any part of the remainder of the term for which he was sentenced.” 18 U.S.C. § 4207. . See Moore v. Reid, 142 F.Supp. 481 (D.D.C.1956), rev’d on other grounds, 100 U.S.App.D.C. 373, 240 F.2d 654 (1957). . See discussion" }, { "docid": "633764", "title": "", "text": "section 4202 of Title 18 ... shall not apply. 21 U.S.C. § 848(e). Section 4202 (later amended to become incorporated in 18 U.S.C. § 4205) provided: [wjhenever confined and serving a definite term or terms of more than one year, a prisoner shall be eligible for release on parole after serving one-third of such term or terms or after serving ten years of a life sentence or of a sentence of over thirty years, except to the extent otherwise provided by law. 18 U.S.C. § 4205(a). Hernandez relies on the 1984 Comprehensive Crime Control Act. That act deleted the words “section 4202 of title 18 ... shall not apply” from 21 U.S.C. § 848(e). Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 224(c), 98 Stat. 2030 (1984). Hernandez argues that the 1984 Crime Control Act amendment entitles him to eligibility for parole during the first fifteen years of his sentence. Hernandez is mistaken. The amendment to § 848(e) was technical in nature. The section of the Sentencing Reform Act in which Congress amended § 848(e) was part of the “Technical and Conforming Amendments.” Congress deleted the no-parole language to conform § 848(e) to the new federal sentencing scheme in which parole is abolished. See Gallardo v. Quinlan, 874 F.2d 186, 188 (3rd Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 373, 107 L.Ed.2d 359 (1989). This technical amendment, in a congressional act which ultimately eliminates parole eligibility for all new prisoners, does not confer parole eligibility on prisoners who were previously ineligible for parole. See Farese v. Story, 823 F.2d 975 (6th Cir.1987). Moreover, the Sentencing Reform Act of 1984 applies only to those offenses occurring on or after its effective date, November 1,1987. See Sentencing Reform Act, Pub.L. No. 98-473, § 235(a)(1), 98 Stat. 2031, amended by Pub.L. No. 99-217, § 4, 99 Stat. 1728 (1985). This court has previously held that the provisions of the new sentencing laws apply only if the underlying offense was committed after November 1, 1987. United States v. Byrd, 837 F.2d 179, 181 (5th Cir.1988). Hernandez claims the no-parole provision of §" }, { "docid": "23534899", "title": "", "text": "379, eh. 263, § 5. . There are other points of dissimilarity between D.C.Oode § 24-206 and 18 U.S.C. § 4207. The latter statute reads as follows: “Revocation upon retaking parolee “A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board. “The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the terms and conditions thereof. “If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.” It will be noted that § 24-206 provides that the time a prisoner was on parole shall not be taken into account to diminish the time for which he was sentenced, and upon revocation of parole the remainder of the sentence originally imposed is to be considered as a new sentence. By 18 U.S.C. § 4207 the Board of Parole may require the prisoner to serve all or any part of the remainder of the term for which he is sentenced. It is a point of interest that 18 U.S.C. § 4207 was enacted in its present form on June 25, 1948 (ch. 645, 62 Stat. 855), almost a year following the enactment of D.C.Code § 24-206 in which Congress inserted the provision that a parolee may be represented by counsel at a revocation hearing. . 100 U.S.App.D.C. 373, 246 F.2d 654 (1957). . Hurley v. Reed, 110 U.S.App.D.C. 32, 288 F.2d 844 (1961). Action for declaratory judgment. Opinion by Mr. Justice Reed, sitting by designation. Held: By 18 U.S.C. § 4207, parolee is entitled to have counsel present at revocation hearing before hearing officer of the Board and must be advised of that privilege; question of right to counsel may be raised in declaratory judgment action in D. C. District Court, notwithstanding prisoner might have proceeded by habeas corpus in federal district court" }, { "docid": "11811337", "title": "", "text": "v. Petrovsky, 756 F.2d 675 (8th Cir.1985) (per curiam); Richardson v. United States Parole Commission, 729 F.2d 1154, 1156 n.1 (8th Cir.1984) (per curiam); Hayward v. United States Parole Commission, 659 F.2d 857, 862 (8th Cir.1981), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 454 (1982). Instead, in each of those cases, we determined that the federal parole guidelines did not result in a more onerous punishment. . See Portley, 444 U.S. at 1312, 100 S.Ct. at 715; Warren v. U.S. Parole Commission, 659 F.2d 183 at 195 (D.C.Cir.1981). The Sixth Circuit merely held without further elaboration that “(t]here is no ex post facto violation in the retroactive application of the guidelines.” Stroud, 668 F.2d at 847. . See Dufresne, 744 F.2d at 1549-50; Warren, 659 F.2d at 193; Raifai v. United States Parole Commission, 586 F.2d 695, 698-99 (9th Cir.1978). The Supreme Court has twice expressly declined to consider whether retrospective application of the federal parole guidelines violates the ex post facto clause. See United States Parole Commission v. Geraghty, 445 U.S. 388, 390 n.1, 408, 100 S.Ct. 1202, 1205 n. 1, 1214-15, 63 L.Ed.2d 479 (1980); United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2239-40, 60 L.Ed.2d 805 (1979). In each of those cases, the Court found it unnecessary to address any part of the ex post facto issue. . Parole Commission and Reorganization Act, ch. 311, 90 Stat. 219 (1976) (codified as amended at 18 U.S.C.A. §§ 4201-4218 (West 1985)) (repealing and replacing Act of June 25, 1948, P.L. 80-722, ch. 311, §§ 4201-4207, 62 Stat. 683, 854-55, and Act of Aug. 25, 1958, P.L. 85-752, §§ 3-5, 72 Stat. 845-47 (both codified as amended at 18 U.S.C. §§ 4201-4209 (1970)) (repealed 1976)). The Sentencing Reform Act of 1984 abolishes the parole system and replaces the current sentencing process with a system of sentencing guidelines, effective November 1, 1986. P.L. 98-473, tit. II, ch. II, 98 Stat. 1987; id. at § 218(a)(5), 98 Stat. 2027 (repealing chapter 311, currently codified as amended at 18 U.S. C.A. §§ 4201-4218 (West 1985)). The Parole" }, { "docid": "3944343", "title": "", "text": "KEARSE, Circuit Judge: Defendants United States Parole Commission and its chairman and members (collectively the “Commission”) appeal from a judgment of the United States District Court for the District of Connecticut, T.F. Gilroy Daly, Chief Judge, permanently enjoining the Commission to comply with procedures consistent with those specified by this Court in Drayton v. McCall, 584 F.2d 1208 (2d Cir.), (“Drayton”), rev’g, 445 F.Supp. 305 (D.Conn.1978), for parole rescission proceedings. 636 F.Supp. 101. On appeal, the Commission contends that decisions of the Supreme Court and this Court since Drayton have eroded the validity of Drayton’s holdings (1) that an inmate whose early effective release date has been set has a liberty interest protectable under the Due Process Clause of the Fifth Amendment to the Constitution, and (2) that due process requires that, to the extent consistent with institutional safety, such an inmate be given the rights to be represented by counsel, to call witnesses, to confront and cross-examine adverse witnesses, and to have a de novo hearing concerning certain factual issues, before his early release date may be rescinded. We conclude that post-Drayton decisions of the Supreme Court and this Court have not undermined Drayton’s analysis, and, accordingly, we affirm the judgment of the district court. I. BACKGROUND Under the federal parole system as it presently exists, see 18 U.S.C. §§ 4201-4218 (1982) (repealed effective Nov. 1, 1987, Pub.L. No. 98-473, tit. II, §§ 218(a)(4), 235(a)(1), 98 Stat. 2027, 2031 (1984), as amended by Pub.L. No. 99-217, § 4, 99 Stat. 1728 (1985)), the Commission conducts an initial parole hearing for most prisoners shortly after their incarceration, 18 U.S.C. § 4208(a), following which the Commission may set an “effective date of parole,” i.e., a date not more than six months away, 28 C.F.R. §§ 2.1(h), 2.12(b) (1986), or set a presumptive parole date as much as 15 years away, id. § 2.12(b), or schedule a hearing for reconsideration after 15 years, id. If an “effective date of parole” (which we also refer to as an “early release date”) is not set at the initial hearing, it may be set at" }, { "docid": "6848461", "title": "", "text": "sentence to 1035 days, entitling him to a release on December 26, 1958. It is well established that upon revocation of parole the prisoner shall be required to serve all or any part of the remainder of the term to which he was sentenced. 18 U.S.C.A. § 4164 provides the conditionally released prisoner is to be treated as if released upon parole. 18 U.S.C.A. § 4207 provides that when a parole is revoked a prisoner may be required to serve all or any part of the remainder of his sentence. The Board of Parole has power to revoke a conditional release. Upon revocation the prisoner may be required to serve the balance of his original sentence. The balance is ascertained by deducting the time actually served from the sentence imposed. A prematurely released prisoner is entitled to no credit upon his sentence for the number of days of his premature release. Upon revocation of his parole the prisoner forfeits good time earned and may be required to serve the portion of his sentence not previously served. Wooten v. Wilkinson, 5 Cir., 265 F.2d 211, 212; Yates v. Looney, 10 Cir., 250 F.2d 956, 957. The only case found which supports petitioner’s contention that upon revocation of parole he is required to serve only the good time to which he is legally entitled is the case of Verhuel v. Attorney General, D.C.Kan., 180 F.Supp. 154. We agree with the trial court’s conclusion that the Yates case, supra, decided by the 10th Circuit nullified the effect of the Verhuel decision. We further believe that the Wooten and Yates cases are based upon sound reasoning and correctly interpret the parole statutes. Petitioner’s contention that he has a vested right in industrial good time earned under 18 U.S.C.A. § 4162 is without merit. This statute on its face plainly shows that credit for industrial good time is given upon the same terms and conditions as good conduct commutation. The courts have uniformly held that industrial good time is subject to forfeiture upon parole violation. Wipf v. King, 8 Cir., 131 F.2d 33; Northcutt v." }, { "docid": "23136578", "title": "", "text": "v. Cline, 540 U.S. 581, 595, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004) (internal quotations omitted). As the preceding analysis demonstrates, we believe that this is precisely the case with respect to the phrase “term of imprisonment” in 18 U.S.C. § 3624(b). B. Because the language of the statute is unclear, we may consult its legislative history as a guide to congressional intent. United States v. Rast, 293 F.3d 735, 737 (4th Cir.2002) (“The confusing statutory language allows us to look beyond the text for clues about congressional intent.”); see also BedRoc Ltd., LLC v. United States, 541 U.S. 176, 187 n. 8, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (noting that “longstanding precedents ... permit resort to legislative history only when necessary to interpret ambiguous statutory text.”). Principally, Yi argues that we must read 18 U.S.C. § 3624(b) to require the computation of GCT based on the “sentence imposed” because the prior version of the statute calculated GCT in this manner. Under 18 U.S.C. § 4161 (repealed), a model prisoner could serve less time by earning credit for good behavior against “the term of his sentence.” 18 U.S.C. § 4161 (repealed). In relevant part, this law provided that: Each prisoner convicted of an offense against the United States and confined in a penal or correctional institution for a definite term other than for life, whose record of conduct shows that he has faithfully observed all the rules and has not been subjected to punishment, shall be entitled to a deduction from the term of his sentence!,] beginning with the day on which the sentence commences to run.... Id. In 1984, Congress repealed 18 U.S.C. § 4161 and codified the current GCT statute as part of the Comprehensive Crime Control Act. See Pub.L. No. 98-473, 98 Stat.1976 (1984). Yi contends that nothing in the language of the new statute or its legislative history suggests that Congress intended to change the previous practice of awarding GCT based upon the sentence imposed. We disagree. Although Congress was mainly concerned with simplifying the computation of GCT under the prior stat ute, the new" } ]

[ { "docid": "9510493", "title": "", "text": "and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; (emphasis added). As a result of the amendments, Bankruptcy Code § 330(a) now provides in pertinent part: (a)(1) After notice to the parties in interest and the United States Trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, an examiner, a professional person employed under section 327 or HOS- CA) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses (4)(A) Except as provided in subpara-graph (B), the court shall not allow compensation for— (i) unnecessary duplication of services; or (ii) services that were not— (I) reasonably likely to benefit the debtor’s estate; or (II) necessary to the administration of the case. (B) In a Chapter 12 or Chapter 13 case in which the debtor is an individual, the court may allow reasonable compensation to the debtor’s attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and other factors set forth in this section .... (emphasis added) We agree with the district court that the plain reading of § 330 precludes an award of attorney’s fees to a debtor’s attorney in a Chapter 7 or Chapter 11 proceeding. The Inglesby firm attempts to avoid the plain meaning of the statute by suggesting that the statute contains a drafting error or is ambiguous since the amendment specifically authorizes the bankruptcy court to award reasonable compensation to the debtor’s attorney in a Chapter 12 or Chapter 13 in cases where the debtor is an individual. We must presume, however, that Congress intended what it said when it revised § 330 to delete any provision for the award of compensation to a debtor’s attorney in either a Chapter 7 or a Chapter 11 case. It" } ]

[ { "docid": "7267950", "title": "", "text": "a judge has the ability to readjust income levels at the end of the case. A. The Law Concerning Fee Enhancements The Bankruptcy Court awarded a 20% enhancement for the extraordinary success Baker Botts achieved in the SCC case. The law concerning attorneys’ fees in bankruptcy is quite established. The Fifth Circuit has summarized it as follows: Calculation of Attorneys’ Fees Section 330 of the Bankruptcy Code gives bankruptcy courts discretion to award reasonable compensation to debtors’ attorneys in bankruptcy cases. 11 U.S.C. § 330(a)(1)(A). This authority includes the discretion, upon motion or sua sponte, to “award compensation that is less than the amount requested.” Id. § 330(a)(2). Section 330(a)(3) further directs courts to “consider the nature, the extent, and the value of’ the legal services provided when determining the amount of reasonable compensation to award, taking into account “all relevant factors,” including, but not limited to: (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; (D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; and (E) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. Id. § 330(a)(3). The Fifth Circuit has traditionally used the lodestar method to calculate “reasonable” attorneys’ fees under § 330. In re Fender, 12 F.3d 480, 487 (5th Cir.1994). A court computes the lodestar by multiplying the number of hours an attorney would reasonably spend for the same type of work by the prevailing hourly rate in the community. Shipes v. Trinity Indus., 987 F.2d 311, 319 (5th Cir.1993). A court then may adjust the lodestar up or down based on the factors contained in § 330 and its consideration of the twelve factors listed in Johnson, 488 F.2d at 717-19. See Fender, 12 F.3d at 487. While" }, { "docid": "3437023", "title": "", "text": "a chapter 12 or chapter 13 case in which the debtor is an individual, the court may award reasonable compensation to the debtor’s attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in § 330(a). See In re Digman, No. 98-00220-C, slip op. at 2 (Bankr.N.D.Iowa Aug. 17, 1998). Section 330 governs allowance of attorney fees and permits the court, on its own motion or on the motion of a party in interest, to award compensation that is less than the amount requested. In re Peterson, 251 B.R. 359, 363 (8th Cir. BAP 2000). We have consistently held that the lodestar method, calculated by multiplying the reasonable hourly rate by the reasonable number of hours required to represent the debtor in the case, is the appropriate approach for determining reasonable compensation under § 330. To determine the reasonable rates and hours, § 330(a)(3)(A) directs courts to consider factors including: —the time spent; —the rates charged; —the necessity of the services for administration of the case; —the reasonableness of the amount of time spent in light of the complexity, importance and nature of the problem, issue or task addressed; and —the reasonableness of the requested compensation compared to the customary compensation charged by comparably skilled practitioners in non-bankruptcy cases. Id. at 363-64 (citations omitted); see also In re Apex Oil Co., 960 F.2d 728, 732 (8th Cir.1992) (adopting lodestar approach). In making this determination, the court must take into consideration whether the professional exercised reasonable billing judgment. In re Mednet, 251 B.R. 103, 108 (9th Cir. BAP 2000). Time spent “hand-holding” or reassuring debtors, or on matters which do not require attorney services, are simply not compensable at an attorney’s regular hourly rates. In re Stromberg, 161 B.R. 510, 519 (Bankr.D.Colo.1993). Counsel has a duty to supervise clients’ conduct for compliance with the Bankruptcy Code. In re Kloubec, 251 B.R. 861, 866 (Bankr.N.D.Iowa 2000). As a professional, an attorney must instruct the debtor on appropriate" }, { "docid": "13983051", "title": "", "text": "debtor’s attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section.” 11 U.S.C. § 330(a)(4)(B). These additional factors include, but are not limited to, the following: (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; (D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; (E) with respect to a professional person, whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field; and (F) whether 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). The Sixth Circuit has adopted the “lodestar” method of calculating fees, requiring the court to consider “a reasonable hourly rate for the particular attorney handling the case” and then multiplying that rate by the “reasonable hours worked on the case.” In re Boddy, 950 F.2d 334, 337 (6th Cir.1991). But, as this court and others have recently observed, the evaluation of attorney fee requests under § 330 is “more nuanced” than Boddy’s helpful formula. In re Acevedo, 2014 WL 6775272 (Bankr.W.D.Mich. 2014); In re Ulrich, 517 B.R. 77 (Bankr. E.D.Mich.2014). Any professional requesting compensation under § 330(a) has the burden of proving entitlement to an award. Id. at 80. The court notes that Mr. Mapes is “board certified” and that the Trustee has not challenged his hourly rate ($250.00)— perhaps because the rate is presumptively reasonable under the court’s Memorandum Regarding Allowance of Compensation and Reimbursement of Expenses for Court-Appointed Professionals, as amended effective October 1, 2013, (the “Fee Memorandum”) at ¶ 16. Similarly, the Trustee takes no issue with the rates that" }, { "docid": "12412949", "title": "", "text": "the Application whether additional services were performed for which compensation is not sought. Before ruling upon the Application, the Court requires additional information in this regard. Hourly Rates Certain of the fees sought in the Application are for the services of “CB Hefner” (“Ms. Hefner”), one of the paralegals employed by the Firm. This Court has ruled that, as a general matter, the customary hourly rate for paralegals in the Tulsa, Oklahoma market is $50.00 per hour. See Reconversion, 216 B.R. at 55. In a previous case, after an evidentiary hearing in which Ms. Hefner’s qualifications and abilities were presented to the Court, the Court authorized compensation for Ms. Hefner’s services at the rate of $70.00 per hour. However, the Firm seeks compensation for certain tasks performed by Ms. Hefner at the rate of $80.00 per hour. See Application, Time Entries for CB Hefner dated 12/04/97, 2/19/98, 2/27/98, 3/25/98 and 3/30/98. All other entries for Ms. Hefner are at the previously approved rate of $70 per hour. Unless the Trustee desires to present evidence to justify the higher rate, the Court will not consider awarding fees for Ms. Hefner’s services at the rate of $80.00 per hour. Trustee Time/Attomey Time It is well established that a Chapter 7 Trustee is not entitled to compensation as an attorney for time spent on the performance of his or her statutory duties. Section 328(b) of the Bankruptcy Code provides that: (b) If the court has authorized a trustee to serve as an attorney or accountant for the estate under section 327(d) of this title, the court may allow compensation for the trustee’s services as such attorney or accountant only to the extent that the trustee performed services as attorney or accountant for the estate and not for performance of any of the trustee’s duties that are generally performed by a trustee without the assistance of an attorney or accountant for the estate. § 328(b). This Court finds persuasive the following analysis of Senior United States District Judge Thomas R. Brett: [I]f the bankruptcy court authorizes the trustee to serve as his or her" }, { "docid": "12235975", "title": "", "text": "fees is “grossly excessive” and inaccurate. Seoul Travel contends that she wasted time advancing positions or fighting fights that she should not have reasonably or honestly advocated or chose to combat. Further, Seoul Travel maintains that Castagno-li’s efforts achieved nothing in this case because the Debtors’ plan still has not been confirmed. Further, Seoul Travel points out that Castagnoli did not amend the Schedules after the evidence adduced at the confirmation hearing bore out that the Debtors had misleading and false information in their Schedules I and J and omitted reference to the insider transfers and gambling losses. Finally, Seoul Travel objects to Castagnoli’s hourly rate of $195.00 on the basis that the quality of her work was generally poor. Pursuant to 11 U.S.C. § 330, professionals applying for fees payable out of the bankruptcy estate must demonstrate that their services were actual, necessary and reasonable. Specifically, § 330(a)(4)(B) provides in relevant part: In a ... chapter 13 case in which the debtor is an individual, the court may allow reasonable compensation to the debt- or’s attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section. 11 U.S.C. § 330(a)(4)(B) (emphasis supplied). Those other factors that are referred to are set forth as follows: (3)(A) In determining the amount of reasonable compensation to be awarded, the court shall consider the nature, the extent, and the value of such services, talcing into account all relevant factors, including— (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; (D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance and nature of the problem, issue, or task addressed; and (E) whether the compensation is reasonable based on the customary compensation charged by comparably skilled" }, { "docid": "2537123", "title": "", "text": "were not— (I) reasonably likely to benefit the debtor’s estate; or (II) necessary to the administration of the case. (B)In a ... chapter 13 case in which the debtor is an individual, the court may allow reasonable compensation to the debtor’s attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section. The “other factors set forth in this section” include: (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; (D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; (E) with respect to a professional person, whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field; and (F) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. Guided by the statute, and bearing in mind that “in determining the reasonableness of attorney’s fees, a bankruptcy judge has broad discretion,” I will reduce counsel’s fee request by $135.50, and will grant the fee application to the extent of $4615.53. B. Paying Fees Under the Plan Section 1326(b)(1) provides that “[b]efore or at the time of each payment to creditors under the plan, there shall be paid any unpaid claim of the kind specified in section 507(a)(2) of this title.” Allowed attorney’s fees for debtors’ counsel are a claim of the kind specified in § 507(a)(2), via § 503(b). The Bosses’ confirmed plan commits them to pay MVSB a set amount ($183.71/ month) on account of its secured claim for 57 months, and a final lump sum payment at the end of the plan. Thus, today’s question is whether plan distributions to" }, { "docid": "15302033", "title": "", "text": "accords administrative status to certain claims, including “compensation and reimbursement awarded under section 330(a) of this title.” 11 U.S.C. § 503(b)(2). The Grubea firm contends that its claim for legal fees is allowable under section 330(a), so that the trustee may pay those fees prior to any distribution to the debtor under section 1326(a)(2). Sections 1326(a)(2) essentially authorizes the trustee to pay a claim for legal fees that have been “allowed.” At the time that this court granted an order of dismissal, however, the Grubea firm had not even submitted an application for allowance of its claim. Bankruptcy Courts are divided on whether they can still approve legal fees at this late stage of the current proceeding, that is, subsequent to entry of an order of dismissal. Compare In re Garris, 496 B.R. 343 (Bankr.S.D.N.Y.2013) and In re Harris, 258 B.R. 8 (Bankr.D.Idaho 2000) with In re Lewis, 346 B.R. 89, 111 (Bankr.E.D.Pa.2006). We need not decide this issue, however, because the Grubea firm is not here entitled to such payment in the facé of client opposition. The following text of 11 U.S.C. § 330(a)(4)(B) recites the controlling standard for the allowance of legal fees in the instant case: In a chapter 12 or chapter 13 case in which the debtor is an individual, the court may allow reasonable compensation to the debtor’s attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section. Such other considerations would include the time spent and the rates being charged, as well as “all relevant factors.” 11 U.S.C. § 330(a)(3). In the present instance, the debtors do not dispute that the Grubea firm provided the legal services for which it now seeks compensation. Although counsel appears not to have maintained time records, the proposed allowance is actually less than the amount cited in the statement of fees that counsel filed as required under Bankruptcy Rule 2016. Rather, the debtors assert their understanding that any fee balance" }, { "docid": "8271220", "title": "", "text": "the petition” that remains in the possession or control of the debtor as of the date of conversion). In the conversion context, there may be some potential tension between § 1326(a)(2) and 11 U.S.C. § 348(f)(1)(A). However, that issue is not before me. . A parallel construction would read as follows: \"If confirmation of a plan is denied, the trustee shall return any such payment to the debtor, after deducting any unpaid claim allowed under section 503(b) of this title.” . In a chapter 13 case prior to confirmation, property of the estate includes most legal and equitable interests of the debtor in property as of the commencement of the case, see 11 U.S.C. § 541(a)(1), as well as such property interests acquired after commencement of the case, see 11 U.S.C. § 1306(a). Unless the court orders otherwise, property of the estate vests in the debtor upon confirmation. 11 U.S.C. § 1327(b). . Further support for this interpretation of the relationship between the two Code sections may be found in the general principle that a more specific statutory provision (in this case, § 1326(a)(2)) should control a more general provision (§ 349(b)(3)) governing the same subject matter, unless the statute as a whole demonstrates a contrary intention. E.g., In re Combustion Engineering, Inc., 391 F.3d 190, 237 n. 49 (3d Cir.2004); United States v. City of Chester, 144 F.2d 415, 422 (3d Cir.1944); In re Gulevsky, 362 F.3d 961, 963 (7th Cir.2004); In re Hanson, 310 B.R. 131, 133 (Bankr.W.D.Wis.2004). . Section 330(a)(3) provides: In determining the amount of reasonable compensation to be awarded to an examiner, trustee under chapter 11, or professional person, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including— (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; (D) whether the services were performed within a reasonable amount of" }, { "docid": "14299223", "title": "", "text": "hearing, Walker & Patterson filed an amended plan that, among other things, increased the balance of attorneys’ fees to be paid under the plan to $3000. After the bankruptcy court confirmed the Cahills’ amended Chapter 13 plan, Walker & Patterson filed a fee application together with contemporaneous time records. According to the time records, Walker & Patterson spent 13.20 attorney hours on the case, 2.05 paralegal hours, and $12.33 in out-of-pocket expenses. Based on its hourly rates, Walker & Patterson claimed a total amount of $3758.08. Although no objection was filed to the fee request, the bankruptcy court sua sponte entered an order for a hearing on the request. After the hearing, the bankruptcy court found that Walker & Patterson’s initial fee request was unreasonably high given that “[tjhere was nothing terribly unusual about the case,” and, “[i]f anything, the case appearfed] to involve less activity than most.” In re Cahill, Order Allowing Fees for Debtors’ Counsel, No. 03-43024-H2-13, at 2 (Bankr.S.D.Tex. Sept. 19, 2004). Applying the criteria for “reasonable compensation” enumerated in 11 U.S.C. § 330(a)(3) (2000) and the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), the bankruptcy court awarded Walker & Patterson $1737 in attorneys’ fees plus $12.33 in expenses based on the following findings: (1) the time spent by Walker & Patterson greatly exceeded that spent by other counsel in a typical Chapter 13 case, and in some cases Walker & Patterson’s attorneys duplicated each other’s efforts; (2) the rates that Walker & Patterson charged exceeded the reasonable and customary hourly rate for Chapter 13 practitioners in the area; (3) Walker & Patterson performed unnecessary work pertaining to the payment of a secured claim to keep a boat used solely for recreational purposes; (4) Walker & Patterson did not adequately prepare the case for the first confirmation hearing and did not perform its services in a particularly timely manner; (5) the proposed fee amount substantially exceeded the customary compensation for comparably skilled non-bankruptcy practitioners, and no adequate basis for a premium was shown; (6) the case was less" }, { "docid": "8271221", "title": "", "text": "more specific statutory provision (in this case, § 1326(a)(2)) should control a more general provision (§ 349(b)(3)) governing the same subject matter, unless the statute as a whole demonstrates a contrary intention. E.g., In re Combustion Engineering, Inc., 391 F.3d 190, 237 n. 49 (3d Cir.2004); United States v. City of Chester, 144 F.2d 415, 422 (3d Cir.1944); In re Gulevsky, 362 F.3d 961, 963 (7th Cir.2004); In re Hanson, 310 B.R. 131, 133 (Bankr.W.D.Wis.2004). . Section 330(a)(3) provides: In determining the amount of reasonable compensation to be awarded to an examiner, trustee under chapter 11, or professional person, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including— (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; (D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; (E) with respect to a professional person, whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field; and (F) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. . Section 330(a)(4)(B) provides: In a chapter 12 or chapter 13 case in which the debtor is an individual, the court may allow reasonable compensation to the debt- or's attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section. . As a general principle, the timing of the actual payment of allowed administrative expenses (as opposed to the allowance of the administrative expenses) in bankruptcy cases rests within the sound discretion of the court. See 4 Collier on Bankruptcy ¶ 503.03 (15th rev." }, { "docid": "17613866", "title": "", "text": "unsecured creditor claims, other than domestic support obligations and the Trustee’s commission.” Debtor’s Brief at 4. (Dkt. No. 24). Stated differently, the Debtor asserts that unpaid attorneys’ fees claims are to be paid first and in full. Debtor’s Brief at 2 (citing In re DeSardi, 340 B.R. 790, 809 (Bankr.S.D.Tex.2006)). The Debtor’s argument requires the court to focus on the applicable Bankruptcy Code provisions. In order for attorneys’ fees to be paid “[bjefore or at the time of each payment to creditors under the plan,” a claim must exist under section 507(a)(2). § 1326(b)(1). This requires an administrative expense allowed under section 503(b). § 507(a)(2). Allowed administrative claims include “compensation and reimbursement awarded under section 330(a).” § 503(b)(2) (emphasis added). Section 330 deals with compensation of officers, including a chapter 13 debtor’s attorney. § 330(a)(4)(B) (with consideration given to “the benefit and necessity of such services to the debtor”). To determine the “reasonable compensation” of a chapter 13 debtor’s attorney, the court must consider certain specified factors. § 330(a)(3)(A-F) (which includes the lodestar analysis). Therefore, the debtor’s attorney must obtain a court order establishing the fee award before, or at the time, a chapter 13 plan is confirmed so the attorney, the debtor, the chapter 13 trustee, all creditors, and the court know what amount shall be first or concurrently be paid under § 1326(b)(1). In this district, chapter 13 debtor’s attorneys’ fees are normally approved in connection with the confirmation hearing, with the amount of the fee award stated in the confirmation order. This process is consistent with the law of this circuit that requires a bankruptcy court to use the lodestar method to determine attorneys’ fees. Boddy v. United States Bankruptcy Court (In re Boddy), 950 F.2d 334 (6th Cir.1991). In Boddy, the bankruptcy court utilized a so-called “normal and customary” standard and only awarded a chapter 13 debtors’ attorney $300, which was included in the confirmation order. At the time of the award, the bankruptcy court had a practice that limited the maximum chapter 13 fee to $650. The Sixth Circuit reversed because the bankruptcy court “did" }, { "docid": "13983050", "title": "", "text": "re Global Technovations Inc.), 694 F.3d 705 (6th Cir.2012). The present matter involves no request to “augment the estate” but instead requests a share of the res included within each bankruptcy estate. The court has ample authority to resolve the disputes. II. ANALYSIS Although attorneys who represent individual debtors in chapter 7 proceedings may only look to their clients for the payment of fees, attorneys who represent chapter 13 debtors enjoy additional rights to payment of their fees as an administrative claim, paid from estate assets. To qualify for an administrative expense, the attorney must persuade the court to award fees under § 330(a). See 11 U.S.C. § 503(b)(2) (administrative expenses include fees awarded under § 330(a)); see also In re Kennedy Manufacturing, 331 B.R. 744 (Bankr.N.D.Ohio 2005) (though fee applications by professionals may be entitled to “presumption of correctness” if sufficiently detailed, applicant bears burden of proving that fees and expenses are compensable). Under § 330(a), which primarily addresses compensation of professionals who represent the estate, the court may award “reasonable compensation to the debtor’s attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section.” 11 U.S.C. § 330(a)(4)(B). These additional factors include, but are not limited to, the following: (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; (D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; (E) with respect to a professional person, whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field; and (F) whether 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." }, { "docid": "14299227", "title": "", "text": "F.3d at 204; Barron, 325 F.3d at 692. B. Analysis Walker & Patterson argues that the district court erred by: (1) affirming the bankruptcy court’s use of a “typical case” lodestar calculation as provided in General Order 2004-5 rather than a traditional lodestar calculation for analyzing its fee request under 11 U.S.C. § 330; (2) affirming the factual finding that Walker & Patterson’s attorneys duplicated each other’s efforts in preparing the case, a factor which justified a reduction of the fee request; and (3) affirming the factual finding that Walker & Patterson had not adequately prepared the case for confirmation. We consider each of these arguments in turn. 1. Calculation of Attorneys’Fees Section 330 of the Bankruptcy Code gives bankruptcy courts discretion to award reasonable compensation to debtors’ attorneys in bankruptcy cases. 11 U.S.C. § 330(a)(1)(A). This authority includes the discretion, upon motion or sua sponte, to “award compensation that is less than the amount requested.” Id. § 330(a)(2). Section 330(a)(3) further directs courts to “consider the nature, the extent, and the value of’ the legal services provided when determining the amount of reasonable compensation to award, taking into account “all relevant factors,” including, but not limited to: (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; (D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; and (E) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. Id. § 330(a)(3). The Fifth Circuit has traditionally used the lodestar method to calculate “reasonable” attorneys’ fees under § 330. In re Fender, 12 F.3d 480, 487 (5th Cir.1994). A court computes the lodestar by multiplying the number of hours an attorney would reasonably spend for the same type of work by the prevailing hourly rate in" }, { "docid": "19755648", "title": "", "text": "title; and (2) reimbursement for actual, necessary expenses. 11 U.S.C. § 330(a). In calculating the appropriate compensation, the lodestar approach, including the possibility of adjustments in rare and exceptional circumstances, is an appropriate method to use in calculating reasonable compensation under § 330. Chamberlain v. Kula (In re Kula), 213 B.R. 729, 736 (8th Cir. BAP 1997). The lodestar method is calculated as the number of hours reasonably expended multiplied by a reasonable hourly rate. Id. Determinations as to necessity, reasonableness, etc., involve questions of fact. The bankruptcy court’s decision to award fees are reviewed for an abuse of discretion. Grunewaldt v. Mut. Life Ins. Co. (In re Coones Ranch, Inc.), 7 F.3d 740, 744 (8th Cir.1993). Moreover, judges are justified in relying on their own knowledge of customary rates and experience concerning reasonable and proper fees, without the need for independent evidence. Bachman v. Pelofsky (In re Peterson), 251 B.R. 359, 365 (8th Cir. BAP 2000). The appellants do not question the number of hours spent by either the trustee or his attorneys, nor the reasonableness of their rates. Rather, they argue that their efforts did not benefit the estate, in part, based on their earlier argument that there is no estate. The appellants’ argument that the trustee’s attorneys services must benefit the estate is an incorrect characterization of the standard. Section 330 contains no requirement that the attorneys’ services benefit the estate. Section 330(a)(3)(A) states: In determining the amount of reasonable compensation to be awarded, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including- — ■ (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; (D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; and (E) whether the compensation is reasonable based on the" }, { "docid": "15923220", "title": "", "text": "the debtor’s attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section. 11 U.S.C. § 330(a)(4)(B). Section 330(a) generally provides that, after notice and a hearing, the court may award to a professional person employed with court approval “reasonable compensation for actual, necessary services rendered ... and ... reimbursement for actual, necessary expenses.” 11 U.S.C. § 330(a)(1). In determining “the nature, the extent and the value” of the services, a court considers the following factors: (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; (D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; and (E) whether 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 customary review of a fee application under § 330 starts with a determination of the “lodestar,” by multiplying a reasonable number of hours expended by a reasonable hourly rate. See Unsecured Creditors’ Comm. v. Puget Sound Plywood, Inc., 924 F.2d 955, 960 (9th Cir.1991). The lodestar formula is a means of putting a market rate on particular legal services rendered in a case. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Yermakov, 718 F.2d at 1471. Although the lodestar method presents the “primary” and “customary” approach, it is not the exclusive method for calculating reasonable fees under § 330, and § 330 does not mandate its use. See Puget Sound Plywood, 924 F.2d at 960-61 (holding that the bankruptcy court did not abuse its discretion by using an alternative fee formula). In chapter 13 cases, the lodestar approach may not" }, { "docid": "18139190", "title": "", "text": "the estate). In a similar vein, the Fourth Circuit has held, in the context of approving compensation for debtor’s counsel, that Section 329 of the Bankruptcy Code and Federal Rule of Bankruptcy Procedure 2017 “ ‘furnish the court with express power to review payments to attorneys for excessiveness.’ ” Burd v. Walters (In re Walters), 868 F.2d 665, 667 (4th Cir.1989) (citing In re Martin, 817 F.2d 175, 180 (1st Cir.1987)). Also, it should be noted that “a request for administrative expenses, unlike a proof of claim, is not ‘deemed allowed’ in the absence of an objection and does not constitute prima facie evidence of the validity and amount of the request.” In re Morgan, 48 B.R. 148, 149 (Bankr.D.Md.1985) (quoting In re B & W Tractor Co., 38 B.R. 613, 616-17 (Bankr.E.D.N.C.1984)). Section 503 permits the payment of administrative expenses, as a cost of the administration of the bankruptcy estate, to trustees or other professionals within the bounds of Section 330. 11 U.S.C. § 503(b)(2). Section 330 provides that a trustee may be awarded “reasonable compensation for actual, necessary services rendered ... and reimbursement for actual, necessary expenses.” Id. §§ 330(a)(l)(A)-(B). In determining reasonable compensation, the Bankruptcy Code provides the following list of guiding factors: [T]he court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including' — • (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; (D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; and (E) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. Id. §§ 330(A)-(E). The amount of compensation that a trustee may receive is not without limitation, however. Section 326 expressly limits the amount of compensation a" }, { "docid": "16415470", "title": "", "text": "Law Firm in determining whether a debt- or’s plan is properly funded. Finally, the Law Firm argues that the Supplement shows that the Trustee in this case objects to the Law Firm’s fees more frequently than do the other trustees in this district. Applicable Law Section 330 of the Bankruptcy Code governs compensation of attorneys in bankruptcy cases. Section 330(a)(1) authorizes a bankruptcy court to award reasonable compensation to a professional person employed under § 327 or § 1103 for actual, necessary services, and reimbursement for actual, necessary expenses. Section 330(a)(3) instructs how to determine reasonable compensation: [i]n determining the amount of reasonable compensation to be awarded to ... [an attorney or other] professional person, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including— (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services were necessary to the administration of, or bene ficial at the time at which the service was rendered toward the completion of, a case under this title; (D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; (E) with respect to a professional person, whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field; and (F) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. An attorney representing a debtor in a Chapter 13 case is not employed under either § 327 or § 1103. However, § 330(a)(4)(B) states that a bankruptcy court “may allow reasonable compensation” to the attorney for an individual debtor in a Chapter 13 case “based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section.” Federal Rule of Bankruptcy Procedure 2016(a) governs the procedure for an attorney to apply for compensation and reimbursement of expenses. Local Bankruptcy Rule 2016-1 (E.D.M.) sets" }, { "docid": "20506915", "title": "", "text": "such services; (B) the rates charged for such services; (C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a ease under this title; (D) whether the services were performed within a reasonable amount of. time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; (E) with respect to a professional person, whether the person is board certified or otherwise has demonstrated skill and experience in the bankruptcy field; and (F) whether the compensation is reasonable based on the customary compensation charged by comparably skilled practitioners in cases other than cases under this title. Id. § 330(a)(3) (emphasis added). Section 330(a)(4) further lists those services for which a court may not approve compensation: (A) Except as provided in subparagraph (B), the court shall not allow compensation for— (i) unnecessary duplication of services; or (ii) services that were not— (I) reasonably likely to benefit the debtor’s estate; or (II) necessary to the administration of the case. Id. § 330(a)(4) (emphasis added). 2. The Pro-Snax Retrospective, “Material Benefit” Standard The underlying bankruptcy case at issue in Pro-Snax was initiated when creditors filed an involuntary Chapter 7 bankruptcy petition against the debtor. Pro-Snax, 157 F.3d at 416. The bankruptcy court later converted the case to Chapter 11 upon the debtor’s consent and appointed a Chapter 11 trustee soon thereafter. Id. The debtor proposed a plan of reorganization, but the bankruptcy court denied confirmation of the plan based largely on the creditors’ objections. Id. at 416-17. The court then converted the case back to a Chapter 7 proceeding. Id. at 417. The law firm Andrews & Kurth (“A & K”) provided legal services to the debtor both before and after the case had been converted to Chapter 11. Id. at 416-17. Upon A & K’s fee application, the bankruptcy court awarded A & K $30,000 in fees and $7,500 in expenses. Id. at 417 n. 4. The district court reversed the award on the ground that § 330 precluded A & K from being" }, { "docid": "186149", "title": "", "text": "regarding terms of settlement (.10) Prepare notice of compromise (1.00) Telephone conference with court and obtain hearing date (No Charge) (1.10) 06/10/02 BRS 0.30 Review file and notice; Prepare order approving compromise with debtor (.30) Professional Services $1,147.50 The final report and account, filed January 30, 2003, indicates that Trustee recovered $16,794.47 for creditors. Trustee’s accompanying application for compensation and reimbursement of expenses requests $2,429.45 in compensation, pursuant to 11 U.S.C. § 326, and $32.80 for expenses. Trustee explained in detail that Tanks-ley was uncooperative and she hired Counsel after failing to obtain Tanksley’s cooperation. Analysis I. Statutory Authority for Retention of Counsel and Allowance of Compensation Section 327(a) of the Bankruptcy Code authorizes a trustee to employ an attorney to represent or assist the trustee in carrying out the trustee’s duties, with limitations set forth in 11 U.S.C. §§ 328(a) and 330(a)(1)(A) and (B). Under § 330(a)(1)(A) and (B), counsel for a trustee may be awarded “reasonable compensation for actual, necessary services rendered” and “reimbursement for actual, necessary expenses.” 11 U.S.C. § 330(a)(1)(A) and (B). Section 330(a)(3) describes what courts are to consider when determining whether compensation is reasonable: In determining the amount of reasonable compensation to be awarded, the court shall consider the nature, the extent, and the value of such services, taking into account all relevant factors, including— (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services are necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; (D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the problem, issue, or task addressed; and (E)whether 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). “The standard governing the award of attorney fees has undergone a metamorphism since the turn of the century.” In re Holder, 207 B.R. 574, 581 (Bankr.M.D.Tenn.1997). Pursuant to the Bankruptcy Act" }, { "docid": "3323957", "title": "", "text": "the Regular Practice of Bankruptcy, or other Motions. All such matters and unstated matters, in order for this law office to represent me/us, requires a separate retainer and shall be billed at an hourly rate of $225/hr for each attorney and $110/hr for each paralegal in accordance to [sic] Local Bankruptcy Rules. At the hearing, the debtor reiterated that she had not been aware that additional fees would be charged for the work the law firm was doing and that she was never invoiced for those fees as they were incurred. She also stated that her budget was already very tight and would not permit an increase in plan payments sufficient to cover the requested fees, although she suggested that based on a recent pay increase she might be able to pay an additional $100 a month into the plan. Discussion A. Much has been written by other judges in this district concerning chapter 13 sup plemental fee applications, and little point would be served by repeating the points so ably made. See, e.g., Boleman Law Firm, P.C. v. United States Trustee, 355 B.R. 548 (E.D.Ya.2006); In re Bryant, 346 B.R. 406 (Bankr.E.D.Va.2006); In re Harris, 1998 WL 408896 (Bankr.E.D.Va.1998). Briefly, debtor’s counsel in a chapter 13 case may be compensated from the estate “for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor as well the other factors set forth [in § 330 of the Bankruptcy Code].” § 330(a)(4)(B), Bankruptcy Code. The “other factors” specified in the statute are: the nature, the extent, and the value of such services, taking into account all relevant factors, including— (A) the time spent on such services; (B) the rates charged for such services; (C) whether the services were necessary to the administration of, or beneficial at the time at which the service was rendered toward the completion of, a case under this title; (D) whether the services were performed within a reasonable amount of time commensurate with the complexity, importance, and nature of the" } ]

[ { "docid": "16686793", "title": "", "text": "JOHN R. GIBSON, Circuit Judge. The sole issue on appeal is whether 1985 amendments to the Farm Credit Act of 1971 contain an implied private right of action for damages or injunctive relief, or a defense to foreclosure. The district court, 661 F.Supp. 861, held that the amendments did not imply a private right of action for damages and dismissed without prejudice the Redds’ claims for relief. We affirm the district court’s ruling that the 1985 amendments do not imply a private right of action for damages and we need not reach the issue of whether the amendments may be the basis for injunc-tive or defensive relief to foreclosure. To secure a $350,000 loan, Donald and Mary Redd executed a deed of trust on their farm to the Federal Land Bank of St. Louis. When the Redds fell behind in payments, the bank began foreclosure proceedings. After receiving notice of the action, the Redds filed suit in state court seeking to enjoin foreclosure and obtain damages. The Redds alleged that the bank violated the Farm Credit Act of 1971 (the Act), 12 U.S.C. §§ 2001-2260 (1980 & Supp.1986), the regulations promulgated pursuant to the Act and the fifth amendment. The bank removed the case to the district court, which granted the bank’s motion to dismiss, holding that there is no private right of action “of any kind” under the Act, regulations, or amendments to the Act; and that the Redds have no fifth amendment claim because the bank is not an agent of the federal government. The court declined to exercise its pendent jurisdiction over the remaining state law claims and remanded the case to state court. On appeal, the Redds concede that before the 1985 amendments, there was no private cause of action under the Farm Credit Act See Bowling v. Block, 785 F.2d 556, 557 (6th Cir.) (per curiam), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986); Smith v. Russellville Prod. Credit Ass’n, 777 F.2d 1544, 1547 (11th Cir.1985); Aberdeen Prod. Credit Ass’n v. Jarrett Ranches, Inc., 638 F.Supp. 534, 536-37 (D.S.D.1986); Corum v." } ]

[ { "docid": "5804039", "title": "", "text": "such term was intended to be used in a more limited sense. One district court has determined that if a land bank was considered an agency of the federal government merely because it was chartered and regulated by the federal government, 28 U.S.C. § 1349 would be rendered meaningless. Federal Land Bank of Columbia v. Cotton, 410 F.Supp. 169, 171 (N.D.Ga.1975). There the court further explained that when sections 451 and 1349 are read together, it is clear that a federally-chartered corporation is not an “agency” unless the government has a substantial proprietary interest in it, or at least exercises considerable control over its operations and policies. Such is not the case with federal land banks. Id.; accord, Federal Land Bank of St. Louis v. Keiser, 628 F.Supp. 769, 771-73 (C.D.Ill.1986). The court finally stated that land banks were “obviously meant to be private, rather than government eorporation[s] which would merely be subject to various federal regulations.” Id. When confronted with the issue of whether the actions of the agents of land banks or their affiliates (production credit associations) constitute sufficient governmental action for purposes of the fifth amendment due process or “taking” clauses, two district courts have held that they did not. DeLaigle, 568 F.Supp. at 1439 (due process clause); Birbeck v. Southern New England Production Credit Ass’n, 606 F.Supp. 1030, 1035 (D.Conn.1985) (taking clause). The DeLaigle Court stated, after reviewing the arguments discussed above: The Court concludes that the admittedly heavy regulation of federal land banks does not transform these entities into governmental agencies____ [T]he Court holds that the Federal Land Bank of Columbia is a private corporation without sufficient governmental involvement to support a cause of action under the federal due process clause of the Fifth Amendment. 568 F.Supp. at 1439. Here, plaintiffs cite Schlake v. Beatrice Production Credit Ass’n, 596 F.2d 278 (8th Cir.1979), for the proposition that the Court has jurisdiction over this case. In Schlake, plaintiff brought a procedural due process claim against an affiliate of a federal land bank after it reduced a loan commitment to plaintiff without notice. Id. at 280. The" }, { "docid": "15987698", "title": "", "text": "provision in the conference committee.” Id. The Senate opposed the House provision and it was deleted from the final 1987 Act. H.R. 3030, 100th Cong., 1st Sess., 133 Cong.Rec. 11820 (December 18, 1987). The district court concluded from that legislative history that “[b]oth the House and Senate intended that the borrower have the right to bring a private action in federal court to enforce the Act.” Harper, 692 F.Supp. at 1248, citing Cannon v. University of Chicago, 441 U.S. 677, 711, 99 S.Ct. 1946, 1965, 60 L.Ed.2d 560 (1979) (“the relevant inquiry is not whether Congress correctly perceived the then state of the law, but rather what its perception of the law was.”) (internal quotations omitted). It is abundantly clear, however, that there existed no implied private right of action under the various predecessor statutes or regulations in force prior to the 1987 Act. See, e.g., Bowling v. Block, 785 F.2d 556, 557 (6th Cir.) (Farm Credit Act of 1971), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986); Smith v. Russellville Prod. Credit Ass’n, 777 F.2d 1544, 1548 (11th Cir.1985) (Farm Credit Act of 1971 and regulations); Redd v. Federal Land Bank of St. Louis, 661 F.Supp. 861, 864 (E.D.Mo.1987) (1985 amendments), aff'd, 851 F.2d 219, 223 (8th Cir.1988); Mendel v. Production Credit Ass’n, 656 F.Supp. 1212, 1216 (D.S.D.1987) (1985 amendments), aff'd, 862 F.2d 180, 182 (8th Cir.1988). But cf. Federal Land Bank of St. Paul v. Overboe, 404 N.W.2d 445, 449 (N.D.1987) (allowing use of 1985 amend ments as an affirmative defense in state foreclosure action). “The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific.” Midlantic Nat’l Bank v. New Jersey Dept. of Envtl. Protection, 474 U.S. 494, 501, 106 S.Ct. 755, 759-60, 88 L.Ed.2d 859 (1986). Here, an express private right of action was proposed in both houses of Congress but deleted in the final conference version. “ ‘Because the conference report represents the final statement of the terms agreed to by both houses, next to" }, { "docid": "8781865", "title": "", "text": "jurisdictional allegation is that the matter in controversy arises under the common law of the United States. There is no contention by appellants that the matter in controversy arises under any federal constitutional provision, statute, administrative regulation or treaty. Thus, the only question on appeal is whether the matter in controversy arises under federal common law. Jurisdiction under 28 U.S.C. § 1331(a) may rest on federal common law. Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). Appellants concede that there is no federal case recognizing the existence of federal common law governing fiduciaries in any context whatsoever, but they contend that this court should now declare that federal common law governs fiduciaries of federally chartered production credit associations. We decline to do so and we affirm the district court’s order of dismissal. The Farm Credit Act of 1971, 12 U.S.C. § 2071, et seq., P.L. 92-181, a complete legislative rewriting of the farm credit laws and the statutory basis for the farm credit system, was passed by the 92d Congress, First Session. According to the House Report on the bill, H.R.Rep.92-593, 92d Cong., 1st Sess., the “Federal Farm Credit System will, under [the Act], continue to bring much needed credit to a growing and changing agriculture.” 1971 U.S.Code Cong. & Admin.News, p. 2091. See also Daley v. Farm Credit Administration, 454 F.Supp. 953, 954 (D.Minn.1978) (“The objective of the Farm Credit System is to satisfy the peculiar credit needs of American farmers and ranchers while encouraging those farmers and ranchers to participate through management, control, and ownership of the system.”). 12 U.S.C. § 2091 provides for the organization of production credit associations by “ten or more farmers or ranchers or producers or harvesters of aquatic products desiring to borrow money under the provisions” of Title II of the Farm Credit Act of 1971, 12 U.S.C. § 2001, et seq. The proposed articles of association must be forwarded to the federal intermediate credit bank for the district. Provision for the establishment of federal intermediate credit banks is made in 12 U.S.C. § 2071, and" }, { "docid": "7412928", "title": "", "text": "cause of action exists under 15 U.S.C. § 77q. In Re Storage Technology Corporation Securities Litigation, 630 F.Supp. 1072 (D.Colo.1986); Masri v. Wakefield, 602 F.Supp. 404 (D.Colo.1983); Ohio v. Peterson, 472 F.Supp. 402 (D.Colo.1979), aff'd, 651 F.2d 687, 689 (10th Cir.), cert. denied, 454 U.S. 895, 102 S.Ct. 392, 70 L.Ed.2d 209 (1981); Trussell v. United Underwriters, Ltd., 228 F.Supp. 757 (D.Colo.1964). The Tenth Circuit has not fully addressed the issue, but has expressed “considerable doubt” as to whether there exists an implied private right of action under 15 U.S.C. § 77q. Ohio v. Peterson, Lowry, Rall, Barber & Ross, 651 F.2d 687, 689 n. 1 (10th Cir.), cert. denied, 454 U.S. 895, 102 S.Ct. 392, 70 L.Ed.2d 209 (1981). As such, plaintiffs may not proceed under 18 U.S.C. § 1341, 18 U.S.C. § 1951, or 15 U.S.C. § 77q. Their Complaint, inasmuch as it is based on those statutes, must be dismissed. B. Cause of action under various securities laws For the reasons stated above, plaintiffs’ claims under 15 U.S.C. § 77q are not cognizable. The totality of plaintiffs’ securities claims appear to be brought pursuant to that section. However, inasmuch as the claims can be construed to rest on portions of the Securities Act for which a private cause of action is available, plaintiffs’ claims must still be dismissed. Defendants are exempted from the provisions of the Securities Act, pursuant to 15 U.S.C. § 77c(a)(2), which reads in pertinent part: ... the provisions of this subchapter shall not apply to any of the following classes of securities: ... any security issued or guaranteed by ... any person controlled or supervised by and acting as an instrumentality of the Government of the United States pursuant to authority granted by the Congress of the United States. See Schlake v. Beatrice Production Credit Association, 596 F.2d 278, 281 (8th Cir.1979) (banks in the Farm Credit System have agency status in the governmental scheme). Therefore, the entirety of plaintiffs’ claims under the Securities Act must-be dismissed. C. Cause of action under the Racketeer Influenced and Corrupt Organizations Act. Defendants assert that plaintiffs’" }, { "docid": "7160917", "title": "", "text": "courts of law. 131 Cong.Rec. H11518-19 (daily ed. December 10, 1985). While statements of this sort are entitled to some weight where they are consistent with the statute and other legislative history, they are not controlling in determining legislative intent. Brock v. Pierce County, — U.S. -, 106 S.Ct. 1834, 1840, 90 L.Ed.2d 248 (1986). In light of the comprehensive remedial scheme in the statute which does not include any kind of private action and the action of the committee in refusing to amend the proposed legislation to include an action for damages, the Court finds that the Congress intended no private right of action of any kind. The Court finds that the remaining factors of the Cort analysis do not suggest a different legislative intent. Defendants also argue that plaintiffs have no claim under the fifth amendment since defendants are not agents of the federal government. This view has substantial support. See LPR Land Holdings v. Federal Land Bank of St. Paul, 651 F.Supp. 287, 291-92 (E.D.Mich.1987); Birbeck v. Southern New England Production Credit, 606 F.Supp. 1030, 1034-35 (D.Conn.1985); DeLaigle v. Federal Land Bank of Columbia, 568 F.Supp. 1432, 1439 (S.D.Ga.1983), overruled on other grounds, Smith v. Production Credit Association, 777 F.2d 1544, 1548 n. 1 (11th Cir.1985). The Eighth Circuit has touched on this issue in Schlake v. Beatrice Production Credit Association, 596 F.2d 278, 281 (8th Cir.1979). The Court there held that Schlake had no constitutionally protected interest by virtue of his loan application. The Court stated that the jurisdictional issue caused considerable difficulty and held that the pervasive regulation of production credit associations and the association’s special tax status created “a colorable basis for jurisdiction in this case.” The Court went on to find that “even with a finding of subject matter jurisdiction, plaintiff is factually not entitled to relief.” Id. at 281 n. 4. This Court is of the opinion that Schlake does not establish that the acts of Federal Land Banks are the acts of the federal government for purposes of the fifth amendment and that the Eighth Circuit, if squarely presented with the" }, { "docid": "12215181", "title": "", "text": "See Hamilton Stores, Inc., 925 F.2d at 1279 n. 14 (\"The Supreme Court has indicated the importance of district court review of agency action in preference to Claims Court Tucker Act jurisdiction.\"). We now turn to the merits of SEK-CAP's claims. III. The district court dismissed SEK-CAP's complaint on motions filed pursuant to Fed.R.Civ.P. 12(b)(6). Lyng, 758 F.Supp. at 1436. We review this determination de novo. Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). Dismissal under Fed.R.Civ.P. 12(b)(6) is appropriate \"only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle [it] to relief.\" Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, 927 F.2d 1111, 1115 (10th Cir.1991) (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)). The counts in the complaint are separated by defendant. Specifically, the property and liberty interest due process claims are asserted against KDHE only. The claims challenging the regulations are asserted only against the Secretary of Agriculture. We consider all the claims in turn. A. Property Interest In order to state a cause of action under 42 U.S.C. § 1983, a plaintiff must allege both the deprivation of a federal right and that the actor was operating under state law. Buckley Constr., Inc. v. Shawnee Civic & Cultural Dev. Auth., 933 F.2d 853, 857 (10th Cir.1991). It is undisputed that Stanley C. Grant and KDHE were acting under color of state law when they decided not to renew the contract. The focus of this lawsuit, therefore, is on the determination whether SEK-CAP stated a claim for relief with regard to the alleged constitutional deprivation. In the complaint, SEK-CAP alleges that it was deprived of a federal property right when the state failed to renew its contract to operate the WIC program without a hearing. In order to establish the eidstence of a property right, however, SEK-CAP must show a \"legitimate claim of entitlement\" to continued funding and a hearing. See id. at 857; see also Pueblo Neighborhood Health Ctrs., Inc. v." }, { "docid": "21590461", "title": "", "text": "Albert-son’s and Longs issued their notices to proceed, an agent for Centurion, an affiliate of American Federal, approached a partner of Mr. Ventimiglia and proposed that their partnership assume certain nonperforming loans held by American Federal. Mr. Ventimiglia and his partners ultimately refused to assume these loans. They conveyed their decision to American Federal on August 27, 1988. Plaintiffs alleged that in retaliation for Mr. Ventimig-lia’s refusal to assume American Federal’s loans, beginning on September 1, 1988, American Federal made additional demands for collateral from plaintiffs which it knew plaintiffs could not meet. Plaintiffs further alleged that “[b]y refusing to advance construction funds to Plaintiffs unless other non-performing loans of American Federal were assumed by Ventimiglia and other of his partners, and knowing Plaintiffs have no other financing available, American Federal is forcing Tri-Crown to default upon the Joint Venture Agreement.” Id. at 5. Plaintiffs alleged that the foregoing actions of defendants violated the provisions of 12 U.S.C. § 1464(q)(1)(A) and (B). Defendants moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) on sever al grounds, including that plaintiffs had not alleged that defendants extended credit on .a requirement or condition that constituted a tying arrangement and an unusual banking practice. Specifically, defendants contended that plaintiffs failed to allege that defendants actually extended them credit, and that the requirement that WVS restructure its partnership was not an unusual banking practice. The district court granted the motion to dismiss on the ground that since plaintiffs refused to accept the construction loan on the conditions defendants attempted to impose, there was no “extension of credit\" as required by the TIRA, so plaintiffs failed to state a claim thereunder. Rec.Vol. I, Doc. 5, at 2. We review the dismissal of an action for failure to state a claim pursuant to Rule 12(b)(6) de novo. Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). We must accept all the factual allegations as true and must draw all reasonable inferences in favor of the plaintiff. Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). A case should not be dismissed for failure to state" }, { "docid": "21590462", "title": "", "text": "including that plaintiffs had not alleged that defendants extended credit on .a requirement or condition that constituted a tying arrangement and an unusual banking practice. Specifically, defendants contended that plaintiffs failed to allege that defendants actually extended them credit, and that the requirement that WVS restructure its partnership was not an unusual banking practice. The district court granted the motion to dismiss on the ground that since plaintiffs refused to accept the construction loan on the conditions defendants attempted to impose, there was no “extension of credit\" as required by the TIRA, so plaintiffs failed to state a claim thereunder. Rec.Vol. I, Doc. 5, at 2. We review the dismissal of an action for failure to state a claim pursuant to Rule 12(b)(6) de novo. Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). We must accept all the factual allegations as true and must draw all reasonable inferences in favor of the plaintiff. Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). A case should not be dismissed for failure to state a claim unless the court determines beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. Grider v. Texas Oil & Gas Corp., 868 F.2d 1147, 1148 (10th Cir.), cert. denied, — U.S. -, 110 S.Ct. 76, 107 L.Ed.2d 43 (1989). To state a claim for relief under 12 U.S.C. § 1464(q)(1)(A) or (B), a plaintiff must allege that an association (1) extended credit (2) on the condition or requirement (3) that its customer obtain or provide some additional credit, property, or service. See Bruce, 837 F.2d at 718; cf. Sharkey v. Security Bank & Trust Co., 651 F.Supp. 1231, 1232 (D.Minn.1987) (setting forth same elements as necessary to state claim under antitying provisions of Bank Holding Company Act, 12 U.S.C. § 1972(1)); Nordic Bank PLC v. Trend Group, Ltd., 619 F.Supp. 542, 552 (S.D.N.Y.1985) (same). The primary issue on appeal is whether plaintiffs sufficiently alleged the existence of the first element, an extension of credit. The TIRA does not define what constitutes the extension of credit. The" }, { "docid": "9712167", "title": "", "text": "at 405. See, e.g., Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19-24, 100 S.Ct. 242, 247-49, 62 L.Ed.2d 146 (1979); Associates Commercial Corp. v. Sel-O-Rak Corp., 746 F.2d 1441, 1444 (11th Cir.1984); Belluso v. Turner Communications Corp., 633 F.2d 393, 397 (5th Cir.1980); United States v. Capeletti Bros., Inc., 621 F.2d 1309, 1315 (5th Cir.1980). As is readily acknowledged, this principle has its limits and exceptions and cannot apply when the legislative history and context are contrary to such a reading of the statute. See, e.g., Herman & MacLean v. Huddleston, 459 U.S. 375, 387 n. 23, 103 S.Ct. 683, 690 n. 23, 74 L.Ed.2d 548 (1983) (rejecting application of expressio unius principle and holding that availability of express remedy under one section of Securities Act of 1933 did not preclude maintenance of action under another section of act, in light of . purposes of act); Bailey ¶. Federal Intermediate Credit Bank, 788 F.2d 498, 500 (8th Cir.) (list in 12 U.S.C. sec. 2072 of 21 powers vested in intermediate credit banks was not exclusive; banks also had implicit power to remove officer of production credit association), cert. denied, — U.S.-, 107 S.Ct. 317, 93 L.Ed.2d 290 (1986); State of Illinois, Dep’t of Public Aid v. Schweiker, 707 F.2d 273, 277 (7th Cir.1983) (“Not every silence is pregnant;” holding that agency decision of disallowance was subject to judicial review in district court although Congress said nothing about judicial review in statute section relating to disallowances, while specifically providing for review in appellate court in another section relating to agency determinations of plan nonconformity); Chicago Title Ins. Co. v. Sherred Village Ass’n, 544 F.Supp. 320, 326 (D.Me.1982) (enumeration of certain prior liens— taxes, assessments, water rates — in 12 U.S. C. sec. 1713(g) did not indicate congressional intent that other unspecified prior liens go unrecognized), aff'd, 708 F.2d 804 (1st Cir.1983); cf. Church of the Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892) (although action contested clearly fell within letter of law, court held that action was plainly outside spirit of law)." }, { "docid": "15987706", "title": "", "text": "matter how salutary, that Congress did not intend to provide.” California v. Sierra Club, 451 U.S. 287, 297, 101 S.Ct. 1775, 1781, 68 L.Ed.2d 101 (1981). Thus we join the several other courts which have also rejected an implied right of action under the 1987 Act. See, e.g., Wilson v. Federal Land Bank of Wichita, No. 88-4058-R (D.Kan. Jan. 30, 1989) (1989 WL 12731); Neth v. Federal Land Bank of Jackson, 717 F.Supp. 1478 (S.D.Ala.1988); Zajac v. Federal Land Bank of St. Paul, No. 88-A3-88-115 (D.N.D. July 19, 1988), 1988 WL 166118, appeal pending, No. 88-5353 (8th Cir.). But see Griffin v. Federal Land Bank of Wichita, 708 F.Supp. 313 (D.Kan.1989) (allowing a private right of action but finding no violation); Leckband v. Naylor, 715 F.Supp. 1451 (D.Minn.1988) (allowing a private right of action to enforce right of first refusal), appeal pending, No. 88-5301 (8th Cir.); Martinson v. Federal Land Bank of St. Paul, No. A2-88-31 (D.N.D. Apr. 21, 1988) (same), appeal pending, No. 88-5202 (8th Cir.). II. The district court sua sponte declared that the Harpers also presented a 42 U.S.C. § 1983 claim. Harper, 692 F.Supp. at 1251-52. We agree that an independent section 1983 inquiry is required because “there could well be federal rights enforceable under section 1983 which are not enforceable by means of a private right of action under the statute creating them.” Boatowners and Tenants Ass’n, Inc. v. Port of Seattle, 716 F.2d 669, 674 (9th Cir.1983). We conclude, however, that section 1983 does not provide a cause of action to remedy the violations alleged by the Harpers. Courts have refused to apply section 1983 to plaintiffs alleging violations of the Farm Credit Act of 1971 and the 1985 amendments. See Schroder v. Volcker, 646 F.Supp. 132, 135 (D.Colo.1986) (plaintiff did not allege that defendants were state actors or that state foreclosure laws permitted sale of plaintiffs’ property without notice and opportunity to contest the sale; therefore “plaintiffs have failed to allege that the defendants acted under color of state law”), aff'd, 864 F.2d 97, 98-99 (10th Cir.1988); Brekke v. Volcker, 652 F.Supp. 651," }, { "docid": "7160918", "title": "", "text": "606 F.Supp. 1030, 1034-35 (D.Conn.1985); DeLaigle v. Federal Land Bank of Columbia, 568 F.Supp. 1432, 1439 (S.D.Ga.1983), overruled on other grounds, Smith v. Production Credit Association, 777 F.2d 1544, 1548 n. 1 (11th Cir.1985). The Eighth Circuit has touched on this issue in Schlake v. Beatrice Production Credit Association, 596 F.2d 278, 281 (8th Cir.1979). The Court there held that Schlake had no constitutionally protected interest by virtue of his loan application. The Court stated that the jurisdictional issue caused considerable difficulty and held that the pervasive regulation of production credit associations and the association’s special tax status created “a colorable basis for jurisdiction in this case.” The Court went on to find that “even with a finding of subject matter jurisdiction, plaintiff is factually not entitled to relief.” Id. at 281 n. 4. This Court is of the opinion that Schlake does not establish that the acts of Federal Land Banks are the acts of the federal government for purposes of the fifth amendment and that the Eighth Circuit, if squarely presented with the issue, would hold that the fifth amendment is inapplicable in a case such as this. Plaintiffs’ state court petition arguably asserts state law claims for breach of contract. The Court declines to exercise its pendent jurisdiction. The appropriate procedure here is to remand the case to the state court. See Hofbauer v. Northwestern National Bank of Rochester, 700 F.2d at 1201. Accordingly, IT IS HEREBY ORDERED that defendants’ motion to dismiss is GRANTED and that plaintiffs’ claim for relief is DISMISSED without prejudice to the extent it seeks relief based on the Farm Credit Act, the regulations under that Act, and the fifth amendment. IT IS FURTHER ORDERED that the remaining state claims are REMANDED to the state court from which they were removed." }, { "docid": "15954683", "title": "", "text": "of the privileges of instrumentality status when it acts more like a privately owned institution than a federal agency. See Rust v. Johnson, 597 F.2d 174, 177-78 (9th Cir.) (Federal National Mortgage Association remains an instrumentality even though it acts as a “Government-sponsored private corporation” in the absence of legislative history or statutory authority to support the conclusion that Congress intended to strip the Association of its federal instrumentality status), cert. denied, 444 U.S. 964, 100 S.Ct. 450, 62 L.Ed.2d 376 (1979). Moreover, production credit associations are more than private institutions with a federal charter. Courts have recognized the “pervasive involvement of the federal government in the creation and operation of the production credit associations.” Schlake v. Beatrice Production Credit Association, 596 F.2d 278, 281 (8th Cir.1979). See also Brenham Production Credit Association v. Zeiss, 153 Tex. 132, 264 S.W.2d 95, 98 (1953) (production credit association is primarily a means of assistance for farmers, and not a mere commercial venture). Finally, while the “sue and be sued” clause in the enabling legislation for production credit associations waives sovereign immunity from ordinary lawsuits, it does not subject production credit associations to liability for punitive damages. Such immunity must be waived expressly. See Painter v. Tennessee Valley Authority, 476 F.2d 943 (5th Cir.1973) (federal instrumentality not liable for punitive damages despite “sue and be sued” clause in charter without express congressional authorization for such liability). The judgment of the district court is affirmed in part, and reversed in part. We remand this case to the district court to have determined the reasonable attorneys’ fees on Sparkman’s counterclaim. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. . MPCA is one of many production credit associations chartered under the Farm Credit Act of 1933. See 12 U.S.C. §§ 2001-2259. The purpose of the Act and of the Farm Credit System is “to encourage farmer- and rancher-borrowers’ participation in the management, control, and ownership of a permanent system of credit for agriculture which will be responsive to the credit needs of all types of agricultural producers....” 12 U.S.C. § 2001(b). . In any action on" }, { "docid": "21123612", "title": "", "text": "the ACA is so fundamental to the claims alleged in the district court that we cannot address the issues raised by the parties without first deciding whether there is a private right of action. Furthermore, an appellate court may uphold a judgment on any proper theory, even if not raised by the parties first in the district court, as long as there is no prejudice to the other party. See Altman v. Altman, 653 F.2d 755, 758 (citing Jurinko v. Edwin L. Wiegand Co., 477 F.2d 1038 (3d Cir.), vacated on other grounds, 414 U.S. 970, 94 S.Ct. 293, 38 L.Ed.2d 214 (1973)). The issue of whether there is such a private right of action has been considered by at least seven courts of appeals. They have uniformly held that there is no private right of action under the ACA or its predecessor, The Farm Credit Act of 1971. See Grant v. Farm Credit Bank of Texas, 8 F.3d 295, 296 (5th Cir.1993); Saltzman v. Farm Credit Services of Mid-America, ACA 950 F.2d 466, 467-69 (7th Cir.1991); Zajac v. Federal Land Bank of St. Paul, 909 F.2d 1181, 1182-83 (8th Cir.1990)(en banc); Griffin v. Federal Land Bank of Wichita, 902 F.2d 22, 24 (10th Cir.1990); Harper v. Federal Land Bank of Spokane, 878 F.2d 1172, 1177 (9th Cir.1989), cert. denied, 493 U.S. 1057, 110 S.Ct. 867, 107 L.Ed.2d 951 (1990); Bowling v. Block, 785 F.2d 556, 557 (6th Cir.)(holding that the Farm Credit Act of 1971, the precursor to the ACA, has no private right of action), cert. denied sub nom., Bower v. Lyng, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986); Smith v. Russellville Production Credit Ass’n, 111 F.2d 1544 (11th Cir.1985); cf. Jarrett Ranches, Inc. v. Farm Credit Bank of Omaha, 128 B.R. 263, 264-65 (D.S.D.1990) (specifically finding no private right of action afforded to farmer/borrowers under the ACA to enforce their rights of first refusal); Renick Brothers, Inc. v. Federal Land Bank Ass’n of Dodge City, 721 F.Supp. 1198, 1200 (D.Kan.1989); Neth v. Federal Land Bank of Jackson, 717 F.Supp. 1478, 1479 (S.D.Ala. 1988). In" }, { "docid": "18303862", "title": "", "text": "MEMORANDUM AND ORDER MacLAUGHLIN, District Judge. This matter is before the Court on defendant’s motion for partial summary judg ment. Also before the Court is plaintiffs appeal from the December 5, 1985 order of the United States Magistrate. The Court will affirm the Magistrate’s order and will grant defendant’s summary judgment motion in all respects. FACTS Plaintiff James M. Corum was formerly employed by defendant Farm Credit Services (FCS). Defendant states that FCS is the management organization for three banking institutions: the St. Paul Bank for Cooperatives (BC), the Federal Land Bank of St. Paul (FLB), and the Federal Intermediate Credit Bank of St. Paul (FICB). (The Court will refer to these three entities collectively as “the Banks.”) Plaintiff responds that the FCS is not a “management organization” for the Banks, rather plaintiff maintains that the Banks have chosen to do business as the FCS. Accordingly, plaintiff has styled his action Corum v. FCS d/b/a BC, FLB, and FICB. The Banks are lending institutions federally chartered under the Farm Credit Act, 12 U.S.C. §§ 2001-2260. The Farm Credit Act established the Federal Credit System, and the Banks are a part of that system. The purpose of the system is to improve the income and well-being of farmers and ranchers by providing credit. See 12 U.S.C. § 2001(a). In 1968, plaintiff was a trial attorney at the St. Paul law firm of Altman, Gerahty, Leonard & Mullally. Corum ¶ 2. During that year, the president of the FICB, Andrew Lampen, approached plaintiff regarding legal employment at the FICB. While plaintiff was negotiating with Lampen regarding the position with FICB, Lampen repeatedly told plaintiff that plaintiff would not get rich working for the FICB, but plaintiff would have “job security” and a company car. Corum 68; 113. When plaintiff started his employment with FICB in 1968, he was the only attorney on the staff. Plaintiff’s title at this time was senior attorney, but he states he was performing the functions of a general counsel. Corum 314-15. In 1969, plaintiff’s title changed to General Counsel. In 1971, the FICB added the corporate office" }, { "docid": "17854285", "title": "", "text": "FLAUM, Circuit Judge. This is a case of first impression in this Circuit. The sole issue on appeal is whether an implied private right of action is available for alleged violations of the Agricultural Credit Act of 1987 (the Act), 12 U.S.C. §§ 2001 to 2279aa-14 (1988). Following decisions in the Eighth, Ninth, and Tenth Circuits, the district court found no implied private right of action under the Act and granted defendant’s motion to dismiss. We now join these circuits and affirm the decision of the district court. Jon and Paul Saltzman, owners of a farm in Indiana, sought to restructure their farm loans with Farm Credit Services of Mid-America (the lender). Both the lender and its farm credit review committee denied the application for restructuring and eventually the Saltzmans lost their farm through foreclosure. The Saltzmans here assert that, in denying their application, the lender failed to comply with borrowers’ rights provisions in the Act that give farmers certain protections. Thus, they seek to enforce the Act by private right of action. Three circuit courts of appeal have concluded that no express or implied private right of action exists under the Act. See Zajac v. Federal Land Bank, 909 F.2d 1181 (8th Cir.1990) (en banc); Griffin v. Federal Land Bank, 902 F.2d 22 (10th Cir.1990); Harper v. Federal Land Bank, 878 F.2d 1172 (9th Cir.1989), cert. denied, 493 U.S. 1057, 110 S.Ct. 867, 107 L.Ed.2d 951 (1990). Two district courts in this Circuit (in addition to the district court in this case) have concurred. Walker v. Federal Land Bank, 726 F.Supp. 211 (C.D.Ill.1989); Hartman v. Farmers Production Credit Ass’n, 628 F.Supp. 218 (S.D.Ind.1983). Because these decisions provide extensive analysis of the issue, we limit our discussion to the essentials. In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court delineated a four-part test for determining whether one may imply a private right of action under federal legislation: (1) Is the plaintiff one of the class for whose especial benefit the statute was enacted? (2) Is there any indication of legislative intent, explicit" }, { "docid": "21123613", "title": "", "text": "(7th Cir.1991); Zajac v. Federal Land Bank of St. Paul, 909 F.2d 1181, 1182-83 (8th Cir.1990)(en banc); Griffin v. Federal Land Bank of Wichita, 902 F.2d 22, 24 (10th Cir.1990); Harper v. Federal Land Bank of Spokane, 878 F.2d 1172, 1177 (9th Cir.1989), cert. denied, 493 U.S. 1057, 110 S.Ct. 867, 107 L.Ed.2d 951 (1990); Bowling v. Block, 785 F.2d 556, 557 (6th Cir.)(holding that the Farm Credit Act of 1971, the precursor to the ACA, has no private right of action), cert. denied sub nom., Bower v. Lyng, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986); Smith v. Russellville Production Credit Ass’n, 111 F.2d 1544 (11th Cir.1985); cf. Jarrett Ranches, Inc. v. Farm Credit Bank of Omaha, 128 B.R. 263, 264-65 (D.S.D.1990) (specifically finding no private right of action afforded to farmer/borrowers under the ACA to enforce their rights of first refusal); Renick Brothers, Inc. v. Federal Land Bank Ass’n of Dodge City, 721 F.Supp. 1198, 1200 (D.Kan.1989); Neth v. Federal Land Bank of Jackson, 717 F.Supp. 1478, 1479 (S.D.Ala. 1988). In light of such an array of precedent, we would require a compelling basis to hold otherwise before effecting a circuit split. Nonetheless, we examine the issue independently and find no reason to disagree with the other courts. The Supreme Court’s decision in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087-88, 45 L.Ed.2d 26 (1975), set forth four factors for determining whether a federal statute provides a private cause of action. “First, is the plaintiff ‘one of the class for whose especial benefit the statute was enacted’ ... ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law ... ?” Id. (citations omitted). In a later opinion, the Court explained that the “focal point” for finding a private right of action is congressional intent in enacting the statute." }, { "docid": "1691691", "title": "", "text": "LOGAN, Circuit Judge. Plaintiff Kenneth McHenry, a medical doctor who appears pro se and in forma pauperis in this appeal, filed suit against Utah Valley Hospital for injuries he allegedly received in January 1980, when the arm of a parking lot gate on the premises unexpectedly descended and knocked him to the ground. McHenry was treated for his injuries and apparently had no further problems for some time. He later developed back problems. McHenry asserts that he did not learn until November 1984 that the incident resulted from Utah Valley’s negligence in operating and maintaining the gate. He asserts that he did not realize until some time after 1984 that his back injury was attributable to the 1980 gate incident. He did not file suit until October 1988. Utah Valley filed an answer and, concurrently, a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c); it also requested an award of attorney’s fees and costs pursuant to Fed.R.Civ.P. 11. The United States magistrate assigned to the case recommended that Utah Valley’s motion be granted because McHenry’s complaint was filed outside the applicable statute of limitations, Utah Code Ann. § 78-12-25(3). McHenry filed objections, but the district court adopted the magistrate’s report and recommendation, concluding that McHenry’s suit was properly barred as untimely. The district court also imposed sanctions of $500 for attorney’s fees and costs against McHenry and his counsel, finding that McHenry’s argument that Utah’s statute of limitations violated the Utah constitution’s open courts provision, Utah Const, art. I § 11, was not warranted by existing law. McHenry v. Utah Valley Hosp., 724 F.Supp. 835, 838 (D.Utah 1989). McHenry now appeals. “Where a party moves to dismiss pursuant to Fed.R.Civ.P. 12(c), we will review the judgment on the pleadings under the standard of review applicable to a Rule 12(b)(6) motion to dismiss.” Bishop v. Federal Intermediate Credit Bank of Wichita, 908 F.2d 658, 663 (10th Cir.1990). Therefore, the standard of review is de novo. See Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). We apply an abuse of discretion standard to both the violation determination and" }, { "docid": "1691692", "title": "", "text": "McHenry’s complaint was filed outside the applicable statute of limitations, Utah Code Ann. § 78-12-25(3). McHenry filed objections, but the district court adopted the magistrate’s report and recommendation, concluding that McHenry’s suit was properly barred as untimely. The district court also imposed sanctions of $500 for attorney’s fees and costs against McHenry and his counsel, finding that McHenry’s argument that Utah’s statute of limitations violated the Utah constitution’s open courts provision, Utah Const, art. I § 11, was not warranted by existing law. McHenry v. Utah Valley Hosp., 724 F.Supp. 835, 838 (D.Utah 1989). McHenry now appeals. “Where a party moves to dismiss pursuant to Fed.R.Civ.P. 12(c), we will review the judgment on the pleadings under the standard of review applicable to a Rule 12(b)(6) motion to dismiss.” Bishop v. Federal Intermediate Credit Bank of Wichita, 908 F.2d 658, 663 (10th Cir.1990). Therefore, the standard of review is de novo. See Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). We apply an abuse of discretion standard to both the violation determination and the imposition of sanctions under Fed.R.Civ.P. 11. See Adamson v. Bowen, 855 F.2d 668, 672-73 (10th Cir.1988); Burkhart ex rel. Meeks v. Kinsley Bank, 852 F.2d 512, 515 (10th Cir.1988). After examining the record, we agree with the district court that McHen-ry’s claims are barred by Utah’s four-year statute of limitations. We also hold that there was no abuse of discretion in the district court’s imposition of sanctions against plaintiff and his counsel. The record indicates that McHenry was afforded sufficient notice of the court’s consideration of the issue of sanctions and had ample opportunity to respond and be heard regarding this issue. See Braley v. Campbell, 832 F.2d 1504, 1514 (10th Cir.1987). McHenry’s request for sanctions against Utah Valley pursuant to 28 U.S.C. § 1927 for precipitating an unnecessary appeal is denied. We have not considered Utah Valley's supplemental brief; therefore it is not necessary for us to reach the merits of McHenry’s motion to strike that brief. For substantially the reasons contained in the district court’s opinion, published as McHenry v. Utah Valley" }, { "docid": "5804040", "title": "", "text": "affiliates (production credit associations) constitute sufficient governmental action for purposes of the fifth amendment due process or “taking” clauses, two district courts have held that they did not. DeLaigle, 568 F.Supp. at 1439 (due process clause); Birbeck v. Southern New England Production Credit Ass’n, 606 F.Supp. 1030, 1035 (D.Conn.1985) (taking clause). The DeLaigle Court stated, after reviewing the arguments discussed above: The Court concludes that the admittedly heavy regulation of federal land banks does not transform these entities into governmental agencies____ [T]he Court holds that the Federal Land Bank of Columbia is a private corporation without sufficient governmental involvement to support a cause of action under the federal due process clause of the Fifth Amendment. 568 F.Supp. at 1439. Here, plaintiffs cite Schlake v. Beatrice Production Credit Ass’n, 596 F.2d 278 (8th Cir.1979), for the proposition that the Court has jurisdiction over this case. In Schlake, plaintiff brought a procedural due process claim against an affiliate of a federal land bank after it reduced a loan commitment to plaintiff without notice. Id. at 280. The court of appeals initially stated that “[t]he jurisdictional issue causes us considerable difficulty. We are certain that the due process clause of the fifth amendment does not constitutionalize contract law.” Id. at 281. The court of appeals went on to say: “Nor is a constitutional violation committed when a governmental agency breaches a contract it has entered into in the commercial world.” Id. (emphasis added). The court of appeals characterized federal land banks and their affiliates as “governmental agencies” without citing any other support for that proposition. This conclusion is contrary to the authorities cited above which held, through an analysis of the applicable federal statutes, that land banks are not governmental agencies, but are merely privately-owned federal corporations. Further, the Schlake Court stated: In the present case the District Court made extensive findings regarding the pervasive involvement of the federal government in the creation and operation of the production credit associations. In granting the notes, debentures, and other obligations of the associations special tax status, Congress has declared, “Each production credit association and its" }, { "docid": "7412929", "title": "", "text": "cognizable. The totality of plaintiffs’ securities claims appear to be brought pursuant to that section. However, inasmuch as the claims can be construed to rest on portions of the Securities Act for which a private cause of action is available, plaintiffs’ claims must still be dismissed. Defendants are exempted from the provisions of the Securities Act, pursuant to 15 U.S.C. § 77c(a)(2), which reads in pertinent part: ... the provisions of this subchapter shall not apply to any of the following classes of securities: ... any security issued or guaranteed by ... any person controlled or supervised by and acting as an instrumentality of the Government of the United States pursuant to authority granted by the Congress of the United States. See Schlake v. Beatrice Production Credit Association, 596 F.2d 278, 281 (8th Cir.1979) (banks in the Farm Credit System have agency status in the governmental scheme). Therefore, the entirety of plaintiffs’ claims under the Securities Act must-be dismissed. C. Cause of action under the Racketeer Influenced and Corrupt Organizations Act. Defendants assert that plaintiffs’ claim under the RICO statute must be dismissed, as they have failed to allege facts underlying the claim with sufficient specificity. We agree. The facts allegedly constituting the “pattern of racketeering activity” charged by the plaintiffs include allegations in the nature of fraud, deceit, or misrepresentation. As such, the RICO claim is governed by the provisions of Rule 9(b), Fed.R.Civ.P. Saine v. A.I.A., Inc., 582 F.Supp. 1299, 1303 (D.Colo.1984); Systems Research, Inc. v. Random, Inc., 614 F.Supp. 494 (N.D.Ill.1985). To meet the requirements of Rule 9(b), plaintiffs must identify the defendants with whom they dealt, the occasions at which any misstatements were made, who made such misstatements, and exactly what was misrepresented and how. Id. See also Seattle-First National Bank v. Carlstedt, 800 F.2d 1008 (10th Cir.1986); Noland v. Gurley, 566 F.Supp. 210, 216 (D.Colo.1983); Trussell v. United Underwriters Ltd., 228 F.Supp. 757, 774 (D.Colo.1964). Plaintiffs have not met this standard. The allegations in the nature of fraud, misrepresentation, etc. which form the basis of the RICO claim are painted with a broad brush in" } ]

[ { "docid": "5027027", "title": "", "text": "Sheffield’s attempted robbery conviction supported an enhanced sentence. In Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the Supreme Court held that the identically worded residual clause in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague, 135 S.Ct. at 2563; see also Welch, 136 S.Ct. at 1262-1263. To be fair to the district court, we note that Johnson came out after sentencing in this case. But “as long as [an] error [is] plain as of * * * the time of appellate review * * * the error is ‘plain’ within the meaning of [Federal Rule of Criminal Procedure 52(b) ].” Henderson v. United States, — U.S. -, 133 S.Ct. 1121, 1124-1125, 185 L.Ed.2d 85 (2013). While this case involves the Sentencing Guidelines rather than ACCA, the government agrees with Sheffield that Johnson’s rationale equally requires resentencing in this direct appeal. See Gov’t Supp. Br. 4 n.3 (“[T]he government has consistently conceded that the residual clause of the career offender guideline is unconstitutionally vague[.]”). That concession makes ample sense; This court has repeatedly noted that, because the language of the Guidelines and ACCA residual clauses are the same, “we apply the ACCA standard to determine whether an offense qualifies as a crime of violence under section 4B1.2.” In re Sealed Case, 548 F.3d at 1089. That textual linkage did not change when the residual clause was held unconstitutional. The “grave uncertainty about how to estimate the risk posed by a crime” and the “uncertainty about how much risk it takes for a crime to qualify as a violent felony,” Johnson, 135 S.Ct. at 2557-2558, brood just as heavily over the Guidelines’ application as they did over the statute. Furthermore, constitutional challenges may be brought against the Guidelines even though they are only advisory. See Peugh v. United States, — U.S. -, 133 S.Ct. 2072, 2082, 186 L.Ed.2d 84 (2013). That is because the Guidelines “impose a series of requirements on sentencing courts that cabin the exercise of * * * discretion.” Id. at 2084. “Common sense indicates that in" } ]

[ { "docid": "7168402", "title": "", "text": "the second subsection above — assertion of a new rule of constitutional law — is at issue here. We may authorize the filing of a second or successive motion only if we first determine that the applicant has made a prima facie showing that satisfies the requirements of this subsection. 28 U.S.C. § 2244(b)(3)(C); see also Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this Court’s determination that an applicant has made a prima facie showing that the statutory criteria have been met is simply a threshold determination). Smith filed two applications, one pro se, and one counseled. We consolidated those applications, and, because the applications raise substantially the same claim, we consider them together. In his applications, Smith indicates that he wishes to raise one claim in a second or successive § 2255 motion. Smith asserts that his claim relies upon the new rule of constitutional law announced in Johnson v. United States, 576 U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In Johnson, the Supreme Court held that because the residual clause of the “violent felony” definition in the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague, imposition of an enhanced sentence under that provision violates the Fifth Amendment’s guarantee of due process. The Supreme Court made clear that its ruling on the residual clause did not call into question the validity of the elements clause or the enumerated crimes clause of the ACCA’s definition of a violent felony. Id. at -, 135 S.Ct. at 2563. Smith’s applications also cite Welch v. United States, 578 U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), in which the Supreme Court held that Johnson applies retroactively to cases on collateral review. In short, Smith asserts that his conviction and sentence under § 924(c) are no longer valid in light of Johnson. In light of the Supreme Court’s holdings in Johnson and Welch, federal prisoners who make a prima facie showing that they previously were sentenced in reliance on the ACCA’s now-void residual clause are entitled to file a second or successive §" }, { "docid": "12170499", "title": "", "text": "no longer violent felonies after Johnson. Because Moore’s two applications raise the same claims, they are hereby consolidated and are considered his first Johnson-based application. The ACCA defines the term “violent felony” as any crime punishable by a term of imprisonment exceeding one year that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred to as the “elements clause,” while the second prong contains the “enumerated crimes” and, finally, what is commonly called the “residual clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). On June 26, 2015, the Supreme Court in Johnson' held that the residual clause of the ACCA is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony. Johnson, 576 U.S. at --- - -,-, 135 S.Ct. at 2557-58, 2563. The Supreme Court clarified that, in holding that the residual clause is void, it did not call into question the application of the elements clause and the enumerated crimes of the ACCA’s definition of a violent felony. Id. at-, 135 S.Ct. at 2563. On April 18, 2016, the Supreme Court held in Welch that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Welch v. United States 578 U.S. -, -, -, 136 S.Ct. 1257, 1264-65, 1268, 194 L.Ed.2d 387 (2016). In light of the Supreme Court’s holdings in Johnson and Welch, federal prisoners who can make a prima facie showing that they previously were sentenced, at least in part, in reliance on the ACCA’s now-voided residual clause are entitled to file a second or successive § 2255 motion in the district court. See In re Robinson, 822 F.3d 1196, 1197 (11th Cir. 2016). However, merely alleging a basis that" }, { "docid": "12201955", "title": "", "text": "a firearm and no weapon was recovered, and, therefore, his § 924(c) conviction was unlawful. I. THEACCA The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), defines the term “violent felony” as any crime punishable by a term of imprisonment exceeding one year that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred to as the “elements clause,” while the second prong contains the “enumerated crimes” and, finally, what is commonly called the “residual clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). On June 26, 2015, the Supreme Court in Johnson held that the residual clause of the ACCA is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony. Johnson, 576 U.S. at -, -, 135 S.Ct. at 2557-58, 2563. The Court clarified that, in holding that the residual clause is void, it did not call into question the application of the elements clause and the enumerated crimes of the ACCA’s definition of a violent felony. Id. at -, 135 S.Ct. at 2563. In Welch, the Supreme Court thereafter held that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Welch, 578 U.S. at -, 136 S.Ct. at 1264-65, 1268. In light of the Supreme Court’s holdings in Johnson and Welch, federal prisoners who can make a prima facie showing that they previously were sentenced, at least in part, in reliance on the ACCA’s now-voided residual clause are entitled to file a second or successive § 2255 motion in the district court. See In re Robinson, 822 F.3d 1196, 1197 (11th Cir. 2016). However, merely alleging a basis that meets § 2255(h)’s requirements in the abstract only “represents] the minimum showing”" }, { "docid": "21710486", "title": "", "text": "or extortion, or involves use of explosives; or (3) otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B); Mays v. United States, 817 F.3d 728, 730-31 (11th Cir. 2016). These three “clauses” are known as the “elements clause,” the “enumerated clause,” and the “residual clause,” respectively. Mays, 817 F.3d at 731. In Johnson, the Supreme Court held that the residual clause of the ACCA is unconstitutionally vague. Johnson, 576 U.S. at -, 135 S.Ct. at 2557-58, 2563. The Supreme Court clarified that, in holding that the residual clause is void, it did not call into question the application of the elements clause and the enumerated clause of the ACCA’s definition of a violent felony. Id. at -, 135 S.Ct. at 2563. On April 18, 2016, the Supreme Court held that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Welch, 578 U.S. at -, 136 S.Ct. at 1265. Although the Supreme Court held that Johnson’s invalidation of the residual clause applied retroactively, the Sm preme Court remanded Welch’s § 2255 proceedings to this Court to determine whether the district court’s denial of the § 2255 motion was correct “on other grounds,” noting that “the parties continue to dispute whether Welch’s strong-arm robbery conviction qualifies as a violent felony under the elements clause of the Act, which would make Welch eligible for a 15-year sentence regardless of Johnson.” Id. at -, 136 S.Ct. at 1268. In light of the Supreme Court’s holdings in Johnson and Welch, many federal prisoners may now seek to make a prima facie claim that they previously were sentenced, at least in part, in reliance on the ACCA’s now-voided residual clause and that therefore they fall within the new substantive rule in Johnson. Federal prisoners who were sentenced under the elements or enumerated clauses, without regard to the residual clause at all, of course, do not fall within the new substantive rule in Johnson and thus do not make a prima facie claim involving this new rule. See In re Robinson, No. 16-11304," }, { "docid": "15459459", "title": "", "text": "deemed unconstitutional. In Johnson, the Supreme Court held that the residual clause of the ACCA is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony. Johnson, 576 U.S. at -, -, 135 S.Ct. 2551, at 2557-58, 2563. The Supreme Court made clear that its holding that the residual clause is void did not call into question the validity of the elements clause and the enumerated crimes of the ACCA’s definition of a violent felony. Id. at -, 135 S.Ct. at 2568. In Welch v. United States, 578 U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), the Supreme Court held that Johnson announced a new substantive rule of constitutional law that applies retroactively to cases on collateral review. In light of the Supreme Court’s holdings in Johnson and Welch, federal prisoners who make a prima facie showing that they previously were sentenced in reliance on the ACCA’s now-voided residual clause are entitled to file a second or successive § 2255 motion in the district court. However, merely asserting, in the abstract, a ground that purportedly meets § 2255(h)’s requirements only “represent^] the minimum showing” necessary to file a successive § 2255 motion. In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003) (granting a state death-row inmate’s successive application because he had proffered detailed evidence, in satisfaction of § 2244(b)(3)(C), that showed “a reasonable likelihood that [he] is mentally retarded” to support his proposed Atkins claim). Rather, § 2244(b)(3)(C) requires the applicant to make “a prima facie showing that the application satisfies the requirements of this subsection.” Id. Accordingly, it is not enough for a federal prisoner to merely cite Johnson as the basis for the claim he seeks to raise in a second or successive §2255 motion. Instead, the prisoner must also make a prima facie showing that he falls within the scope of the new substantive rule announced in Johnson. See, e.g., id.; 28 U.S.C. § 2244(b)(3)(C). Here, Hines was convicted of the following offenses: Count 1 — an" }, { "docid": "4504710", "title": "", "text": "(Greer I) (unpublished). This court subsequently dismissed his direct appeal, and the district court denied his first 28 U.S.C. § 2255 motion. His judgment of conviction became final on August 5, 2005. In 2015, the Supreme Court struck down the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutionally vague. Johnson, 135 S.Ct. at 2560, 2563. Subsequently, the Court held that Johnson was a substantive rule of constitutional law that applies retroactively to cases on collateral review. Welch v. United States, — U.S. —, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016). Although the enumerated offenses clause and the element clause remained intact, defendants whose sentences • were enhanced under the ACCA’s residual clause were entitled to resentencing.. See Johnson, 135 S.Ct. at 2563 (“Today’s decision does not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony [the force/element clause].”) Within one year of the Supreme Court’s decision in Johnson, Mr. Greer moved for authorization under 28 U.S.C. § 2255(h) to file a second habeas petition. Mr. Greer contended his sentence violated Johnson because the district court relied on the identically worded residual clause of the mandatory Guidelines to determine that his second degree assault on a peace officer- constituted a crime of violence. The district court denied Mr. Greer’s motion without reaching his Johnson claims because it concluded Mr, Greer was convicted under the element clause, rather than the residual clause of the Guidelines. But it granted Mr. Greer a certificate of appeala-bility, permitting him to appeal the district court’s decision to this court. While Mr. Greer’s appeal was pending, the Supreme Court decided Beckles v. United States, — U.S. —, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017). In Bedeles, the petitioner moved for § 2255 relief arguing that Johnson ⅛ holding extended to the residual clause of the current Guidelines. Id. at 891. The Supreme Court rejected this argument, emphasizing that the advisory Guidelines were not subject to vagueness challenges because “they merely guide the exercise of a court’s discretion in choosing" }, { "docid": "16435572", "title": "", "text": "evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony. Johnson, 576 U.S. at- -,-, 135 S.Ct. at 2557-58, 2563. The Supreme Court clarified that, in holding that the residual clause is void, it did not call into question the application of the elements clause and the enumerated crimes of the ACCA’s definition of a violent felony. Id. at-, 135 S.Ct. at 2563. On April 18, 2016, the Supreme Court held in Welch that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Welch v. United States, — U.S.-, 136 S.Ct. 1257, 1264-65, 194 L.Ed.2d 387 (2016). The Court explained that, by striking down the ACCA’s residual clause as void for vagueness, Johnson changed the ACCA’s substantive reach and altered “the range of conduct or the class of persons that the [Act] punishes.” Id. at 1265 (brackets in original) (citation omitted). Applying the retroactivity framework set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and its progeny, the Court further stated that Johnson was not a procedural decision because it “had nothing to do with the range of permissible methods a court might use to determine whether a defendant should be sentenced under the [ACCA].” Id. Accordingly, the Court ruled that “Johnson is thus a substantive decision and so has retroactive effect under Teague in cases on collateral review.” Id. In light of the Supreme Court’s holdings in Johnson and Welch, federal prisoners who can make a prima facie showing that they previously were sentenced, at least in part, in reliance on the ACCA’s now-voided residual clause are entitled to file a second or successive § 2255 motion in the district court. See In re Robinson, No. 16-11304, 822 F.3d 1196, 1197, 2016 WL 1583616 (11th Cir. Apr. 19, 2016) (holding that In re Franks, 815 F.3d 1281 (11th Cir. 2016), which had held that Johnson claims brought by ACCA offenders cannot satisfy the statutory requirements of § 2255(h)(2), is no longer good law). However, merely alleging a basis" }, { "docid": "14227680", "title": "", "text": "the application satisfies the stringent requirements of the filing of a second or successive petition,” leaving definitive disposition of that question to the district court (internal quotation marks omitted)). Encinias alleges that one or more of the predicate felony offenses relied on for designating him a career offender qualified for that purpose by virtue of the residual clause in the Guideline’s definition of “crime, of violence,” which encompasses crimes that “involve[] conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). He seeks to challenge his .sentence on the basis of a new rule of constitutional law established in Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The Supreme Court recently made Johnson’s holding retroactive to cases on collateral review in Welch v. United States, — U.S. -, 136 S.Ct. 1257, 1265-66, 194 L.Ed.2d 387 (2016). Thus, Encinias is entitled to authorization for his challenge to the career-offender Guideline so long as it is properly deemed to be based on Johnson for purposes of § 2255(h)(2). In Johnson, the Court held that the identical residual clause in the definition of “violent felony” under the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague. Specifically, the Court concluded that the “residual clause ... invites arbitrary enforcement by judges”-and thus “[i]ncreasing a defendant’s sentence under the clause denies due -process of law,” Johnson, 135 S.Ct. at 2557. In United States v. Madrid, 805 F.3d 1204 (10th Cir.2015), a-direct criminal appeal,-we held that Johnson’s invalidation'of the unconstitutionally' vague residual clause in the ACCA led to the same result'for the career-offender Guideline: “The concerns ... that motivated the Court in Johnson lead us to conclude that the residual clause of the Guidelines is also unconstitutionally vague. If one iteration of the clause is unconstitutionally'vague, so too is the other.” Id. at 1210; see also In re Robinson, No. 16-11304-D, 822 F.3d 1196, 1198, 2016 WL 1583616, at *2 n. 2 (11th Cir. Apr. 19, 2016) (unpublished) (Martin, J., concurring) (noting every circuit except the Eleventh has held or assumed Johnson applies to the Guidelines)." }, { "docid": "19628006", "title": "", "text": "F.3d 832, 846 (C.A.11), cert. denied, 558 U.S. 906, 130 S.Ct. 272, 175 L.Ed.2d 183 (2009). In September 2010, petitioner filed a motion to vacate his sentence under 28 U.S.C. § 2255, arguing that his conviction for unlawful possession of a firearm was not a \"crime of violence,\" and therefore that he did not qualify as a career offender under the Guidelines. The District Court denied the motion, and the Court of Appeals affirmed. Petitioner then filed a second petition for certiorari in this Court. While his petition was pending, the Court decided Johnson, holding that \"imposing an increased sentence under the residual clause of the [ACCA]\"-which contained the same language as the Guidelines' residual clause-\"violate[d] the Constitution's guarantee of due process\" because the clause was unconstitutionally vague. 576 U.S., at ----, 135 S.Ct., at 2563. We subsequently granted his petition, vacated the judgment of the Court of Appeals, and remanded for further consideration in light of Johnson . Beckles v. United States, 576 U.S. ----, 135 S.Ct. 2928, 192 L.Ed.2d 973 (2015). On remand, petitioner argued that his enhanced sentence was based on § 4B1.2(a)'s residual clause, which he contended was unconstitutionally vague under Johnson . The Court of Appeals again affirmed. It noted that petitioner \"was sentenced as a career offender based not on the ACCA's residual clause, but based on express language in the Sentencing Guidelines classifying [his] offense as a 'crime of violence.' \" 616 Fed.Appx. 415, 416 (2015) (per curiam ). \"Johnson, \" the Court of Appeals reasoned, \"says and decided nothing about career-offender enhancements under the Sentencing Guidelines or about the Guidelines commentary underlying [petitioner]'s status as a career-offender.\" Ibid. The Court of Appeals denied rehearing en banc. Petitioner filed another petition for certiorari in this Court, again contending that § 4B1.2(a)'s residual clause is void for vagueness. To resolve a conflict among the Courts of Appeals on the question whether Johnson 's vagueness holding applies to the residual clause in § 4B1.2(a) of the Guidelines, we granted certiorari. 579 U.S. ----, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016). Because the United States, as" }, { "docid": "1318538", "title": "", "text": "COLLOTON, Circuit Judge. Raphael Donnell moves for authorization to file a second or successive motion under 28 U.S.C. § 2255(h). He seeks to challenge a sentence that was imposed in 2008 after the district court applied the career-offender sentencing guideline, USSG § 4B1.1, in calculating Donnell’s advisory sentencing range. Citing Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), Donnell seeks to argue that the residual clause of USSG § 4B1.2(a)(2) is unconstitutionally vague and that his sentence should be vacated. This court may authorize a second or successive motion under § 2255 if the movant makes a “prima facie showing” that the motion “contain[s] ... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. §§ 2255(h)(2), 2244(b)(3)(C); see Kamil Johnson v. United States, 720 F.3d 720, 720 (8th Cir. 2013) (per curiam). A prima facie showing is “a sufficient showing of possible merit to warrant a fuller exploration by the district court.” Kamil Johnson, 720 F.3d at 720 (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)). The Supreme Court in Johnson announced a new rule of constitutional law. The Court held that the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) was unconstitutionally vague and that increasing a defendant’s sentence under that clause violated the constitutional right to due process. In Welch v. United States, — U.S. —, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), the Court made the new rule of Johnson retroactive to cases on collateral review. Donnell seeks to extend Johnson and Welch by urging that the residual clause of USSG § 4B1.2(a)(2) is also unconstitutionally vague. He further contends that the constitutional rule that he proposes for the sentencing guidelines should be applied retroactively to cases on collateral review. Whether an advisory sentencing guideline is susceptible to a vagueness challenge is an open question in this circuit. See United States v. Ellis, 815 F.3d 419, 421 (8th Cir. 2016). The issue is reasonably debatable, and the answer is not dictated by Johnson. Id." }, { "docid": "21507352", "title": "", "text": "prior convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another,” is subject to an enhanced statutory penalty under the ACCA. 18 U.S.C. § 924(e)(1). The ACCA defines the term “violent felony” as any crime punishable by a term of imprisonment exceeding one year that: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, in-, volves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Id. § 924(e)(2)(B). The first prong of this definition is sometimes referred to as the “elements clause,” while the second prong contains the “enumerated crimes” and, finally, what is commonly called the “residual clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). II. JOHNSON AND WELCH On June 26, 2015, the Supreme Court in Johnson held that the residual clause of the ACCA is unconstitutionally vague. Johnson, 576 U.S. at-,-, 135 S.Ct. at 2557-58, 2563. The Supreme Court clarified that, in holding that the residual clause is void, it did not call into question the application of the elements clause and the enumerated crimes clause of the ACCA’s definition of a violent felony. Id. at -, 135 S.Ct. at 2563. On April 18, 2016, the Supreme Court held in Welch that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Welch, 578 U.S. at-, 136 S.Ct. at 1264-65. In light of the Supreme Court’s holdings in Johnson and Welch, many federal prisoners now seek to make a prima facie showing that they previously were sentenced, at least in part, in reliance on the ACCA’s now-voided residual clause, and seek to file a second or successive § 2255 motion in the district court. However, merely alleging a basis that meets § 2255(h)’s requirements in the abstract only “represents] the minimum showing” necessary to file a successive § 2255 motion because, under § 2244(b)(3)(C), the applicant also must make “a prima facie showing" }, { "docid": "661559", "title": "", "text": "PER CURIAM: Dequintan Arnick, federal prisoner # 39501-177, moves for authorization to file a successive 28 U.S.C. § 2255 motion. He may file a successive motion if he makes a prima facie showing that his motion “contain[s]” either “newly discovered evidence that ... would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty,” or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” § 2255(h); Reyes-Requena v. United States, 243 F.3d 893, 897-98 (5th Cir. 2001). Arnick relies on the “new rule” prong of the statute. Arnick’s sentence was based in part on Section 2K2.1(a)(1) of the Sentencing Guidelines, under which one of his prior convictions was deemed a “crime of violence” pursuant to the “residual clause” of Guidelines Section 4B1.2(a)(2), which defines a “crime of violence” for purposes of Section 2K2.1(a)(1). United States v. Arnick, 418 Fed.Appx. 334, 334 (5th Cir. 2011); see § 2K2.1 cmt. n.1. The Supreme Court has held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 2555-57, 2563, 192 L.Ed.2d 569 (2015). Arnick seeks application of Johnson to the identically worded residual clause of Section 4B1.2(a)(2). Johnson announced a new rule of constitutional law that has been made retroactive by the Supreme Court to cases on collateral review. Welch v. United States, — U.S. —, 136 S.Ct. 1257, 1264-65, 194 L.Ed.2d 387 (2016). However, Johnson did not address Section 4B1.2(a)(2) of the Guidelines. See Johnson, 135 S.Ct. at 2555-57. Nor has the Supreme Court held that a Guidelines enhancement that increases the Guidelines range implicates the same due process concerns as a statute that increases a statutory penalty. See United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990); see also United States v. Wilson, 622 Fed.Appx. 393, 405 n. 51 (5th Cir. 2015), cert. denied, —— U.S. ——, 136 S.Ct. 992, 194 L.Ed.2d 13 (2016). We note that even in direct appeals," }, { "docid": "17682629", "title": "", "text": "Booker’s status as a career offender, his criminal history, and other relevant factors. Resentencing Tr. at 7-8 (Jan. 9, 2007) [Dkt. 105]. He intended the sentence to be “less harsh than [he] felt was dictated by the sentencing guidelines, but which was nevertheless appropriate in light of the totality of the circumstances.” Id. at 6. Booker filed this Section 2255 motion in light of the Supreme Court’s decision in Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569, made retroactive by Welch v. United States, — U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387. Prior to Johnsonj ACCA defined a violent felony as any felony that: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another; (2) is burglary, arson, or extortion, [or] involves use of explosives; or (3) otherwise involves conduct that presents a serious potential risk of physical injury to another, 18 U.S.C, § 924(e)(2)(B). These are known respectively as the “elements clause,” the “enumerated clause,” and the “residual clause.” See Welch v. United States, 136 S.Ct. at 1261; United States v. Redrick, 841 F.3d 478, 480 (D.C. Cir. 2016). In Johnson, the Supreme Court held that ACCA’s residual clause is unconstitutionally vague and violates due process. 135 S.Ct. at 2557, 2563. The following year, the Supreme Court determined that the holding in Johnson announced a new, substantive constitutional rule that applied retroactively to cases on collateral review. Welch v. United States, 136 S.Ct. at 1264-65. Because the residual clause of U.S.S.G.. § 4B1.2 is identical to the residual clause of ACCA, the D.C. Circuit has held that the residual clause of Section 4BT.2 is also void for vagueness. United States v. Sheffield, 832 F.3d 296, 312-13 (D.C. Cir. 2016). The Supreme Court subsequently granted certiorari in Beckles v. United States to resolve a circuit split over whether the residual clause of U.S.S.G. § 4B1.2 is void for vagueness and, if so, whether such a rule should' be applied retroactively to reach cases oh collateral review. See 616 Fed.Appx. 415 (11th Cir. 2015), cert." }, { "docid": "16143182", "title": "", "text": "prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4Bl.l(a). The Guidelines define “crime of violence” as any offense under federal or state law that is punishable by imprisonment for more than one year and: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a). On June 26, 2015, the Supreme Court in Johnson held that the residual clause of the ACCA is unconstitutionally vague. Johnson, 576 U.S. at-, -, 135 S.Ct. at 2557-58, 2563. The Supreme Court clarified that, in holding that the residual clause is void, it did not call into question the application of the elements clause and the enumerated crimes clause of the ACCA’s definition of a violent felony. Id. at-, 135 S.Ct. at 2563. On April 18, 2016, the Supreme Court held in Welch v. United States that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Welch v. United States, 578 U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). In 2015, this Court issued our decision in United States v. Matchett, 802 F.3d 1185, 1193-96 (11th Cir. 2015), and held that the vagueness doctrine, upon which the Supreme Court invalidated the ACCA’s residual clause in Johnson, did not similarly apply to the Sentencing Guidelines. We explained that the vagueness doctrine applies both to statutes that define elements of crimes and to statutes fixing sentences, but noted that “the advisory guidelines do neither.” Id. at 1194. We then emphasized that, because the pre-Guidelines sentencing scheme that gave plenary discretion to sentencing judges did not violate the notice requirement of the Due Process Clause, advisory guidelines that merely “inform a sentencing judge’s discretion also cannot violate the notice requirement.” Id. at 1194-95. Finally, we explicitly rejected Matchett’s policy-based argument that allowing the identically worded residual clause in § 4B1.2(a) to stand" }, { "docid": "9659068", "title": "", "text": "as the “elements clause”; subsection (ii)’s list of offenses is known as the “enumerated clause”; and the final phrase in subsection (ii) - “otherwise involves conduct that presents a serious potential risk of physical injury to another” - is known as the “residual clause.” United States v. Redrick, 841 F.3d 478, 480 (D.C. Cir. 2016). However, on June 26, 2015, the Supreme Court struck down the “residual clause” as unconstitutionally vague. See Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (“Johnson 2015”). Then, on April 16, 2016, the Supreme Court held that its holding in Johnson 2015 was “a substantive rule” that applies retroactively to cases on collateral review. Welch v. United States, — U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). Defendant had one year from the date of Johnson 2015 to file a § 2255 motion for collateral relief based on that decision, see 28 U.S.C. § 2255(f), but only a few months of the year remained by the time the Supreme Court decided Welch. Due to this short time frame, the Chief Judge of this Court appointed the Office of the Federal Public Defender (“FPD”) to represent any convicted defendant who previously had been entitled to the appointment of counsel and might have a claim under Johnson and Welch. See Johnson Standing Order No. 1, at 1-2 (D.D.C., June 2, 2016). For those defendants, the Order directed the FPD to file an abridged motion for relief by the one-year deadline, to be supplemented with a fully briefed motion, where warranted, by October 26, 2016. See id. June 26, 2016, fell on a Sunday, so Johnson 2015 motions were due by Monday, June 27, 2016. See Fed. R. Civ. P. 6(a)(1)(C). On June 28, 2016, the FPD filed defendant’s abridged § 2255 motion. (See Def.’s Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, ECF No. 48 (“Def.’s Mot.”).) The FPD acknowledged that the motion was one day late, but it offered the following explanation: Mr. Wilson did not appear on the United States Sentencing Commission’s list" }, { "docid": "9659067", "title": "", "text": "(“Maryland Robbery”); 1988 conviction in D.C. Superior Court for Assault with a Deadly Weapon (“DC ADW”); and a 1988 conviction in D.C. Superior Court.for possession with intent to distribute cocaine and possession of cocaine. The ACCA requires a mandatory minimum sentence of 15-years imprisonment, which was imposed on November 26, 1997. (See Judgment, Nov. 26, 1997, ECF No. 46.) Defendant did not file an appeal. At the time defendant was sentenced, the ACCA defined a “violent felony” as: any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Id. § 924(e)(2)(B). Subsection (i) is known as the “elements clause”; subsection (ii)’s list of offenses is known as the “enumerated clause”; and the final phrase in subsection (ii) - “otherwise involves conduct that presents a serious potential risk of physical injury to another” - is known as the “residual clause.” United States v. Redrick, 841 F.3d 478, 480 (D.C. Cir. 2016). However, on June 26, 2015, the Supreme Court struck down the “residual clause” as unconstitutionally vague. See Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (“Johnson 2015”). Then, on April 16, 2016, the Supreme Court held that its holding in Johnson 2015 was “a substantive rule” that applies retroactively to cases on collateral review. Welch v. United States, — U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). Defendant had one year from the date of Johnson 2015 to file a § 2255 motion for collateral relief based on that decision, see 28 U.S.C. § 2255(f), but only a few months of the year remained by the time the Supreme Court decided Welch. Due" }, { "docid": "17682631", "title": "", "text": "granted, — U.S. -, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016). On June 3, 2016, Booker filed a pro se Section 2255 motion. See Motion to Vacate. Because this is the second Section 2255 motion that Booker has filed, he was required to seek authorization from the D.C.. Circuit to file a second or successive petition. See 28 U.S.C. § 2255(h). The D.C. Circuit determined that Booker had made “a prima facie showing that his claims rely on a new, previously unavailable rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,” and granted his petition for leave to file a second or successive Section 2255 motion in light of Johnson. Order, No. 16-3018 at 1 (June 10, 2016) [Dkt. 107]. Now represented by the Federal Public Defender for the District of Columbia, Booker filed a supplemental motion to vacate his sentence on October 26, 2016. II. DISCUSSION A federal prisoner may file a motion to vacate, set aside, or correct a sentence that was imposed “in violation of the Constitution or laws of the United States ... or was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Booker argues that after Johnson, he no longer qualifies as an armed career criminal under ACCA or as a career offender under U.S.S.G. § 4B1.2. Supp. Motion at 1. The government agrees that Booker no longer qualifies as an armed career criminal under ACCA, but it argues that he has not shown that his sentence was increased under the residual clause of ACCA that the Supreme Court found unconstitutional in Johnson. United States’ Response at 16-18. Before reaching the merits of Booker’s motion, the Court will consider this argument, the statutory procedural requirements, and procedural default. A. Statutory Procedural Requirements According to the government, Booker’s motion is not based on Johnson, and he therefore is not entitled to relief under 28 U.S.C. § 2255 because he cannot show that “his ACCA sentence was infected by constitutional error—he., that the sentencing court relied on the residual clause" }, { "docid": "21710485", "title": "", "text": "of Corrs., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this Court’s determination that an applicant has made a prima facie showing that the statutory criteria have been met is simply a threshold determination). In his counseled application, Hires indicates that he wishes to raise one claim in a second or successive § 2255 motion. He asserts that his claim relies upon a new rule of law, citing Johnson v. United States, 576 U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Welch v. United States, 578 U.S.-, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). Hires argues that he was denied due process because the district court enhanced his sentence under the now-voided residual clause of the Armed Career Criminal Act (“ACCA”) and subjected him to a mandatory minimum 15-year sentence. The ACCA defines a violent felony as any crime punishable by imprisonment for a term exceeding one year that: (1)' has as an element the use, attempted use, or threatened use of physical force against the person of another; (2) is burglary, arson, or extortion, or involves use of explosives; or (3) otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B); Mays v. United States, 817 F.3d 728, 730-31 (11th Cir. 2016). These three “clauses” are known as the “elements clause,” the “enumerated clause,” and the “residual clause,” respectively. Mays, 817 F.3d at 731. In Johnson, the Supreme Court held that the residual clause of the ACCA is unconstitutionally vague. Johnson, 576 U.S. at -, 135 S.Ct. at 2557-58, 2563. The Supreme Court clarified that, in holding that the residual clause is void, it did not call into question the application of the elements clause and the enumerated clause of the ACCA’s definition of a violent felony. Id. at -, 135 S.Ct. at 2563. On April 18, 2016, the Supreme Court held that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Welch, 578 U.S. at -, 136 S.Ct. at 1265. Although the Supreme Court held that Johnson’s invalidation of the residual clause applied" }, { "docid": "15459458", "title": "", "text": "Dep’t of Corrs., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this Court’s determination that an applicant has made a prima facie showing that the statutory criteria have been met is simply a threshold determination). In his application, Hines indicates that he wishes to raise one claim in a second or successive § 2255 motion. Hines asserts that his claim relies upon the new rule of constitutional law announced in Johnson v. United States, 576 U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In his application and attached memorandum, Hines challenges the sentence imposed on him pursuant to Count 2 of' the indictment. Count 2 charges a violation of 18 U.S.C. § 924(c), which makes criminal the use or carrying of a firearm by a person during and in relation to a crime of violence or drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A). He asserts that the Supreme Court’s holding that the residual clause of the ACCA (§ 924(e)(2)(B)(ii)) was unconstitutionally vague means that his conviction for § 924(c) must likewise be deemed unconstitutional. In Johnson, the Supreme Court held that the residual clause of the ACCA is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony. Johnson, 576 U.S. at -, -, 135 S.Ct. 2551, at 2557-58, 2563. The Supreme Court made clear that its holding that the residual clause is void did not call into question the validity of the elements clause and the enumerated crimes of the ACCA’s definition of a violent felony. Id. at -, 135 S.Ct. at 2568. In Welch v. United States, 578 U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), the Supreme Court held that Johnson announced a new substantive rule of constitutional law that applies retroactively to cases on collateral review. In light of the Supreme Court’s holdings in Johnson and Welch, federal prisoners who make a prima facie showing that they previously were sentenced in reliance on the ACCA’s now-voided residual clause are entitled to file a second" }, { "docid": "17682630", "title": "", "text": "clause.” See Welch v. United States, 136 S.Ct. at 1261; United States v. Redrick, 841 F.3d 478, 480 (D.C. Cir. 2016). In Johnson, the Supreme Court held that ACCA’s residual clause is unconstitutionally vague and violates due process. 135 S.Ct. at 2557, 2563. The following year, the Supreme Court determined that the holding in Johnson announced a new, substantive constitutional rule that applied retroactively to cases on collateral review. Welch v. United States, 136 S.Ct. at 1264-65. Because the residual clause of U.S.S.G.. § 4B1.2 is identical to the residual clause of ACCA, the D.C. Circuit has held that the residual clause of Section 4BT.2 is also void for vagueness. United States v. Sheffield, 832 F.3d 296, 312-13 (D.C. Cir. 2016). The Supreme Court subsequently granted certiorari in Beckles v. United States to resolve a circuit split over whether the residual clause of U.S.S.G. § 4B1.2 is void for vagueness and, if so, whether such a rule should' be applied retroactively to reach cases oh collateral review. See 616 Fed.Appx. 415 (11th Cir. 2015), cert. granted, — U.S. -, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016). On June 3, 2016, Booker filed a pro se Section 2255 motion. See Motion to Vacate. Because this is the second Section 2255 motion that Booker has filed, he was required to seek authorization from the D.C.. Circuit to file a second or successive petition. See 28 U.S.C. § 2255(h). The D.C. Circuit determined that Booker had made “a prima facie showing that his claims rely on a new, previously unavailable rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,” and granted his petition for leave to file a second or successive Section 2255 motion in light of Johnson. Order, No. 16-3018 at 1 (June 10, 2016) [Dkt. 107]. Now represented by the Federal Public Defender for the District of Columbia, Booker filed a supplemental motion to vacate his sentence on October 26, 2016. II. DISCUSSION A federal prisoner may file a motion to vacate, set aside, or correct a sentence that was imposed “in violation of the" } ]

[ { "docid": "6570609", "title": "", "text": "Spencer’s contention that Olitsky failed to mitigate his damages. As we noted above, Spencer did not clearly express to the district court whether or not it was making such a contention. Thus, the district court did not abuse its discretion in admitting Olitsky’s testimony. B. Jury instructions. Spencer contends that two elements of Olitsky’s prima facie ADEA case were in dispute and that the district court erred in refusing to submit jury questions on those two elements. Spencer asserts that the district court should have submitted jury questions on (1) whether Olitsky was qualified for the position he held with Spencer and (2) whether Olitsky was replaced by someone outside the protected class. By refusing to submit those questions, Spencer argues, the district court usurped the province of the jury. We rejected that argument in Walther v. Lone Star Gas Co. In Walther, we stated: When the defendant has produced evidence of a nondiscriminatory reason for plaintiff’s discharge, and plaintiff has had an opportunity to challenge that reason as pretextual, the trier of fact should proceed directly to the ultimate issue of whether the defendant intentionally discriminated against the plaintiff. The initial prima facie case is no longer relevant. Under the logic of [U.S. Postal Service Bd. of Governors v.] Aikens [460 U.S. 711, 108 S.Ct. 1478, 75 L.Ed.2d 403], it is clear that the issue of whether a plaintiff made out a prima facie case has no place in the jury room. Instructing the jury on the elements of a prima facie case, presumptions, and the shifting burden of proof is unnecessary and confusing. Instead, the court should instruct the jury to consider the ultimate question of whether defendant terminated plaintiff because of his age. To the extent our decisions before or after Aikens imply that the issue of prima facie case is a factual question for the jury to resolve, we reject such implications as dictum. The district court did not err in its instructions to the jury. C. Olitsky’s ERISA claim. Section 510 of ERISA prohibits employer action against an employee who participates in a pension benefit" } ]

[ { "docid": "3183335", "title": "", "text": "on appeal that the district court erred in failing to grant its post-judgment motion styled “renewed motion for judgment as a matter of law and alternative motion for new trial.” TDCJ further contends that the district court made several erroneous evidentiary and other trial rulings that resulted in TDCJ receiving an unfair trial. TDCJ also argues that the district court erred in its charge to the jury by including racial discrimination in the jury interrogatory on housing, and by referring to housing as an emolument in the jury charge. Finally, TDCJ contends that the trial court erred in entering a permanent injunction against TDCJ. I. Judgment as a Matter of Law and Alternative Motion for New Trial A. Standard of Review TDCJ challenges the district court’s denial of its renewed post judgment motion for judgment as a matter of law, and its alternative motion for a new trial. This court reviews a motion for new trial for abuse of discretion. See Keeler Richards Manufacturing Co., Inc., 817 F.2d 1197 (5th Cir.1987). We review a district court’s denial of a motion for judgment as a matter of law de novo. See Scott v. University of Mississippi 148 F.3d 493, 504 (5th Cir.1998) (citing Travis v. Board of Regents of the Univ. of Tex. Sys., 122 F.3d 259, 263 (5th Cir.1997), cert. denied, 522 U.S. 1148, 118 S.Ct. 1166, 140 L.Ed.2d 176 (1998)). “A motion for judgment as a matter of law ... in an action tried by jury is a challenge to the legal sufficiency of the evidence supporting the jury’s verdict.” Harrington v. Harris, 118 F.3d 359, 367 (5th Cir.1997) (internal quotations and citation omitted). If reasonable persons could differ in their interpretation of the evidence, then the motion should be denied. Baltazor v. Holmes, 162 F.3d 368, 373 (5th Cir.1998). A post-judgment motion for judgment as a matter of law should only be granted when “the facts and inferences point so strongly in favor of the movant that a rational jury could not reach a contrary verdict.” Waymire v. Harris County, Texas, 86 F.3d 424, 427 (5th Cir.1996). We" }, { "docid": "9763904", "title": "", "text": "minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.”). . Copeland v. Wasserstein, Perella & Co., Inc., 278 F.3d 472, 477 (5th Cir.2002). . Id. . Amended and Codified as 42 U.S.C. § 2000e et seq. . U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). . Lindsey v. Prive Corp., 987 F.2d 324, 326 (5th Cir.1993); Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 680 (5th Cir.2001). . Id. . Id. . Id. . McDonnell, 411 U.S. at 802, 93 S.Ct. 1817. . Id. . Aikens, 460 U.S. at 714, 103 S.Ct. 1478 (citing Burdine, 450 U.S. at 254, 101 S.Ct. 1089). . Aikens, 460 U.S. at 715, 103 S.Ct. 1478 (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)). . Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 681 (5th Cir.2001). . Id. (quoting Crawford v. Western Elec. Co., Inc., 614 F.2d 1300, 1315 (5th Cir.1980)). . Jones v. Flagship Intern., 793 F.2d 714, 724 (5th Cir.1986). . Id. . Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 319 (5th Cir.1997) (citing Burdine, 450 U.S. at 253, 101 S.Ct. 1089). . Id. . 132 F.3d 635 (11th Cir.1998). . Carter, 132 F.3d at 637. . Id. at 643. . Id. . Id. . Id. . Id. at 644-45. . 275 F.3d 1014 (11th Cir.2001). . Id. at 1016-18. . Id. at 1015. . Id. at 1015 n. 1, 1016-17. . Id. at 1019-20. . Id. at 1020. . Id. at 1019 n. 10. . McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817 (emphasis added). . 238 F.3d 674, 680 (5th Cir.2001). . Carter, 132 F.3d at 643-44. . Sledge," }, { "docid": "1216344", "title": "", "text": "relevant” and thus “dis-appearfs]” and “drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). As the Supreme Court explained a generation ago in Aikens: “Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether the defendant intentionally discriminated against the plaintiff.” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (internal quotation marks omitted). The Aikens principle applies, moreover, to summary judgment as well as trial proceedings. See Dunaway v. Int’l Bhd. of Teamsters, 310 F.3d 758, 762 (D.C.Cir.2002); Wells v. Colorado Dep’t of Transp., 325 F.3d 1205, 1227-28 (10th Cir.2003) (Hartz, J., concurring); see also Vickers v. Powell, 493 F.3d 186, 195 (D.C.Cir.2007); Holcomb v. Powell, 433 F.3d 889, 896-97 (D.C.Cir.2006); George v. Leavitt, 407 F.3d 405, 411-12 (D.C.Cir.2005); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C.Cir.1998) (en banc). Much ink has been spilled regarding the proper contours of the prima-facie-case aspect of McDonnell Douglas. But as we read the Supreme Court precedents beginning with Aikens, the prima facie case is a largely unnecessary sideshow. It has not benefited employees or employers; nor has it simplified or expedited court proceedings. In fact, it has done exactly the opposite, spawning enormous confusion and wasting litigant and judicial resources. Lest there be any lingering uncertainty, we state the rule clearly: In a Title VII disparate-treatment suit where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district court need not— and should not — decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas. Rather, in considering an employer’s motion for summary judgment or judgment" }, { "docid": "3183336", "title": "", "text": "court’s denial of a motion for judgment as a matter of law de novo. See Scott v. University of Mississippi 148 F.3d 493, 504 (5th Cir.1998) (citing Travis v. Board of Regents of the Univ. of Tex. Sys., 122 F.3d 259, 263 (5th Cir.1997), cert. denied, 522 U.S. 1148, 118 S.Ct. 1166, 140 L.Ed.2d 176 (1998)). “A motion for judgment as a matter of law ... in an action tried by jury is a challenge to the legal sufficiency of the evidence supporting the jury’s verdict.” Harrington v. Harris, 118 F.3d 359, 367 (5th Cir.1997) (internal quotations and citation omitted). If reasonable persons could differ in their interpretation of the evidence, then the motion should be denied. Baltazor v. Holmes, 162 F.3d 368, 373 (5th Cir.1998). A post-judgment motion for judgment as a matter of law should only be granted when “the facts and inferences point so strongly in favor of the movant that a rational jury could not reach a contrary verdict.” Waymire v. Harris County, Texas, 86 F.3d 424, 427 (5th Cir.1996). We accord great deference to the jury’s verdict when evaluating the sufficiency of the evidence, viewing all the evidence and drawing all reasonable inferences in the light most favorable to the verdict. Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir.1996) (en banc) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc), overruled on other grounds). Under the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) framework, the plaintiff must first establish a prima' facie case by a preponderance of the evidence; once established, the prima facie case raises an inference of unlawful discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). The burden of production then shifts to the defendant to proffer a legitimate, nondiscriminatory reason for the challenged employment action. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993). If the defendant meets its burden, the presumption raised by" }, { "docid": "23572993", "title": "", "text": "however, would invade the privacy of the other employees, and the district judge feared that Gehring wanted to use this evidence not for purpose of comparison but to put Case’s personnel practices on trial. The judge concluded that the privacy interests, coupled with her determination to keep the trial focused squarely on Gehring’s claim, justified limiting counsel’s ability to root through the personnel files. The judge followed up with similar evidentiary rulings at trial. District judges have substantial discretion to make such decisions to curtail the expense and intrusiveness of discovery and trial. Rennie v. Dalton, 3 F.3d 1100, 1110 (7th Cir.1993). The judge, who permitted live testimony (in Gehring’s favor) from one of the proposed comparison employees, did not abuse that discretion. Gehring’s other arguments concern the jury instructions. He wanted the judge to walk the jury through the paradigm established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The judge declined, for the very good reason that the Supreme Court has held that this burden-shifting model applies to pretrial proceedings, not to the jury’s evaluation of evidence at trial. Once the judge finds that the plaintiff has made the minimum necessary demonstration (the “prima facie ease”) and that the defendant has produced an age-neutral explanation, the burden-shifting apparatus has served its purpose, and the only remaining question — the only question the jury need answer — is whether the plaintiff is a victim of intentional discrimination. Postal Service v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). See also EEOC v. G-K-G, Inc., 39 F.3d 740, 746 (7th Cir.1994); Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir.1992); Ramsey v. American Air Filter Co., 772 F.2d 1303, 1312-13 (7th Cir.1985). Gehring also wanted the judge to instruct the jury about one permissible inference: that if it did not believe the employer’s explanation for its decisions, it may infer that the employer is trying" }, { "docid": "22308390", "title": "", "text": "motion for JMOL should be reversed. We review a district court’s denial of a motion for JMOL de novo. Thomas v. Tex. Dep’t of Criminal Justice, 220 F.3d 389, 392 (5th Cir.2000). A motion for JMOL should be granted if “there is no legally sufficient evidentiary basis for a reasonable jury to find for a party.” Fed. R.CivP. 50(a). Thus, “if reasonable persons could differ in their interpretations of the evidence, then the motion should be denied.” Thomas, 220 F.3d at 392 (citing Baltazor v. Holmes, 162 F.3d 368, 373 (5th Cir.1998)). “A post-judgment motion for judgment as a matter of law should only be granted when ‘the facts and inferences point so strongly in favor of the movant that a rational jury could not reach -a contrary verdict.’ ” Id. (quoting Waymire v. Harris County, Tex., 86 F.3d 424, 427 (5th Cir.1996)). The jury’s verdict is afforded great deference. Thus, when evaluating the sufficiency of the evidence, we view all evidence and draw all reasonable inferences in the light most favorable to the verdict. Id. Chartwells argues that the district court erred in failing to grant its JMOL motion on Bryant’s unlawful termination claim because there was insufficient evidence for a reasonable jury to find that Bryant’s race or his EEOC claim was a motivating factor it its decision to terminate his employment. Chartwells raises three arguments: (1) Bryant failed to establish a prima facie case of unlawful termination; (2) Bryant did not offer sufficient evidence to establish that Chartwells’ reason for termination was a pretext for discrimination or if true, was only one of the reasons for its conduct, and another “motivating factor” was the plaintiff’s' race or retaliation for his filing of an EEOC claim; and (3) Chartwells offered sufficient evidence that it would have made the same adverse employment decision regardless of any unlawful animus. “[W]hen, as here, a case has been fully tried on its merits, we do not focus on the McDonnell Douglas burden- shifting scheme. Instead, we inquire whether the record contains sufficient evidence to support the jury’s ultimate findings.” Smith v. Berry" }, { "docid": "23547549", "title": "", "text": "prima facie case but should assess the ultimate question of discrimination.’ ” Gray, 263 F.3d at 599 (quoting Kovacevich v. Kent State Univ., 224 F.3d 806, 821 (6th Cir.2000)). The Supreme Court has explained: U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (footnote and internal citations omitted). That is, “the sole remaining issue [is] ‘discrimination vel non.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Aikens, 460 U.S. at 714, 103 S.Ct. 1478). Consequently, “we cannot simply hold that the plaintiffs failure to provide evidence of an essential element of [his] prima facie case is dispositive here. Rather, we must look to the ultimate question — whether the plaintiff has proven that [his] discharge was intentionally discriminatory.” Gray, 263 F.3d at 599. when the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiffs proof by offering evidence of the reason for the plaintiffs [termination], the factfinder must then decide whether the [termination] was discriminatory within the meaning of Title VII. At this stage, the McDonnell-Burdine presumption “drops from the case,” and “the factual inquiry proceeds to a new level of specificity.” In this case, the district court denied Brinker’s motion for summary judgment, holding, inter alia, that Noble had established a prima facie case of race discrimination with respect to his termination. Noble v. Brinker Int’l, Inc., 175 F.Supp.2d 1027, 1038 (S.D.Ohio 2001). As the district court was not persuaded to dismiss this suit for lack of a prima facie case, and as Brinker did “everything that would be required of [it] if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.” Aikens, 460 U.S. at 715, 103 S.Ct. 1478. Stated otherwise, we are not permitted to decide whether the district court erred in holding that Noble made out a prima facie case. Instead, our duty, given Athens, is simply to determine whether Noble" }, { "docid": "23547548", "title": "", "text": "well as the allocations of the burden of proof are the same for employment claims stemming from Title VII and § 1981.” Johnson v. Univ. of Cincinnati, 215 F.3d 561, 573 n. 5 (6th Cir.2000) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). B. Brinker argues that “[t]he district court erred in denying [the defendant’s renewed] motion for judgment as a matter of law because there was no legally sufficient evi-dentiary basis for a reasonable jury to find for Noble on his claim of illegal discrimination.” Among other things, Brinker argues that it was entitled to judgment as a matter of law because “Noble ... failed to establish a prima facie case of discrimination and [did] not present[] evidence to support his claim that [the defendant] discharged him because of his race.” When entertaining a motion for judgment as a matter of law following a trial on the merits in a Title VII case, “ ‘a reviewing court should not focus on the elements of the prima facie case but should assess the ultimate question of discrimination.’ ” Gray, 263 F.3d at 599 (quoting Kovacevich v. Kent State Univ., 224 F.3d 806, 821 (6th Cir.2000)). The Supreme Court has explained: U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (footnote and internal citations omitted). That is, “the sole remaining issue [is] ‘discrimination vel non.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Aikens, 460 U.S. at 714, 103 S.Ct. 1478). Consequently, “we cannot simply hold that the plaintiffs failure to provide evidence of an essential element of [his] prima facie case is dispositive here. Rather, we must look to the ultimate question — whether the plaintiff has proven that [his] discharge was intentionally discriminatory.” Gray, 263 F.3d at 599. when the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiffs proof by offering evidence of the reason" }, { "docid": "23511978", "title": "", "text": "Cir.1994) (adopting Brock’s interpretation in holding that the FLSA “protects employees who are discharged based on their employer’s mistaken belief that they reported violations or otherwise engaged in protected activity.”). Hagan had not engaged in protected activity, and the documents that Hagan points to do not indicate that the company believed Hagan himself had sought a lawyer or taken other arguably protected actions. It is unnecessary for us to agree or disagree with the Third and Eighth Circuits on this issue; even under their interpretation, the reference in the file memo does not create a legally sufficient eviden-tiary basis to find for Hagan on the issue. VIII. For the foregoing reasons the district court’s Rule 50 grant of judgment as a matter of law in favor of the defendants-appellees, Echostar Satellite, L.L.C. and Echosphere, L.L.C., is affirmed. AFFIRMED. . Hagan also argues that the district court’s jury instructions were in error. However, because we find that the district court properly granted judgment as a matter of law, any arguments concerning the jury instructions are moot. Sullivan v. Rowan Co., 952 F.2d 141, 149 (5th Cir.1992) (citing Matherne v. Wilson, 851 F.2d 752, 762 (5th Cir.1988)). This is especially true in light of the prior declaration of a mistrial. Consequently, we need not address the standard of review for jury instructions. . Sullivan, 952 F.2d at 149. . Hagan v. Echostar Satellite L.L.C., No. H-05-1365, 2007 WL 543441, at *4 (S.D.Tex. Feb. 16, 2007). . See, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141-42, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Palasota v. Haggar Clothing Co., 342 F.3d 569 (5th Cir.2003) (per curiam). . Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 575 n. 5 (5th Cir.2004). . See, e.g., Palasota, 342 F.3d at 574 (5th Cir.2003) (per curiam) (citing Scott v. Univ. of Mississippi, 148 F.3d 493, 504 (5th Cir.1998)); Kanida, 363 F.3d at 575 (citing Powell v. Rockwell Int’l Corp., 788 F.2d 279, 285 (5th Cir.1986)); Thomas v. Texas Dept. of Criminal Justice, 220 F.3d 389, 394 (5th Cir.2000) (citing Baltazor v. Holmes, 162" }, { "docid": "22276725", "title": "", "text": "the instruction should include the technical aspects of the McDonnell Douglas burden shifting, a charge re viewed as unduly confusing and irrelevant for a jury.” Id. at 280 n. 4. The Wilkinsburg holding sprang from the district court’s refusal to instruct the jury that it could infer intentional discrimination if it disbelieved the Borough's asserted reasons for not renewing Smith’s contract. In the more common situation, however, as the Seventh Circuit observed in Hennessy v. Penril Datacomm Networks, Inc.: Once the judge finds that the plaintiff has made the minimum necessary demonstration (the \"prima facie case”) and that the defendant has produced an age-neutral explanation, the burden-shifting apparatus has served its purpose, and the only remaining question' — -the only question the jury need answer — is whether the plaintiff is a victim of intentional discrimination. 69 F.3d 1344, 1350 (7th Cir.1995) (quoting Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir.1994)); see also United States Postal Serv. Bd. of Governors v. Atkens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 75 L.Ed.2d 403 (\"But when the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiff’s proof by offering evidence of the reason for the plaintiff’s rejection, the fact finder must then decide whether the rejection was discriminatory within the meaning of Title VII. At this stage, the McDonnell-Burdine presumption 'drops from the case,’ and 'the factual inquiry proceeds to a new level of specificity.’ ”) (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 255 & n. 10, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). As the Eighth Circuit explained: \"Since Hicks, [St. Mary's Honor Center v. Hides, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)] other circuits have held that instructions should normally be limited to the ultimate discrimination issue.” Ryther, 108 F.3d at 849 (Loken, J., for majority of en banc court); see also Woodhouse v. Magnolia Hosp., 92 F.3d 248, 257 (5th Cir.1996) (”[I]t is improper to instruct the jury on the elements of the prima facie case.”);" }, { "docid": "23511979", "title": "", "text": "Sullivan v. Rowan Co., 952 F.2d 141, 149 (5th Cir.1992) (citing Matherne v. Wilson, 851 F.2d 752, 762 (5th Cir.1988)). This is especially true in light of the prior declaration of a mistrial. Consequently, we need not address the standard of review for jury instructions. . Sullivan, 952 F.2d at 149. . Hagan v. Echostar Satellite L.L.C., No. H-05-1365, 2007 WL 543441, at *4 (S.D.Tex. Feb. 16, 2007). . See, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141-42, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Palasota v. Haggar Clothing Co., 342 F.3d 569 (5th Cir.2003) (per curiam). . Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 575 n. 5 (5th Cir.2004). . See, e.g., Palasota, 342 F.3d at 574 (5th Cir.2003) (per curiam) (citing Scott v. Univ. of Mississippi, 148 F.3d 493, 504 (5th Cir.1998)); Kanida, 363 F.3d at 575 (citing Powell v. Rockwell Int’l Corp., 788 F.2d 279, 285 (5th Cir.1986)); Thomas v. Texas Dept. of Criminal Justice, 220 F.3d 389, 394 (5th Cir.2000) (citing Baltazor v. Holmes, 162 F.3d 368, 373 (5th Cir.1998) (citing, in turn, Harrington v. Harris, 118 F.3d 359, 367 (5th Cir.1997))). We note that each of these cited cases involved a jury verdict in the plaintiff's favor, whereas the instant case ended in a hung jury and the district court’s declaring a mistrial. .Kanida, 363 F.3d at 576 (citing Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir.1992) and Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471, 1478 (5th Cir.1992)). . In U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), involving a Title VII bench trial, the Supreme Court reasoned that the McDonnell Douglas burden-shifting analysis drops out (i.e., the district court should examine the “ultimate question,” in our phrasing) when, inter alia, “the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case.” Id. at 714. In Aikens, the district court had previously denied the defendant’s motion for judgment as a matter of law, which the Supreme" }, { "docid": "3518895", "title": "", "text": "presents such reasons, then the burden shifts back to the plaintiff, who is “afforded the ‘opportunity to prove by a prepon derance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.’ ” Reeves, 530 U.S. at 143, 120 S.Ct. at 2106 (citing Burdine, 450 U.S. at 253, 101 S.Ct. at 1093); see also Aka, 156 F.3d at 1288-89. Although the “presumption of discrimination ‘drops out of the picture’ once the defendant meets its burden of production, the trier of fact may still consider the evidence establishing the plaintiffs prima facie case, ‘and inferences properly drawn therefrom ... on the issue of whether the defendant’s explanation is pretextual.’ ” Reeves, 530 U.S. at 143, 120 S.Ct. at 2106 (citing Hicks, 509 U.S. at 511, 113 S.Ct. at 2749, and Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10). Following instruction of the Supreme Court in U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), our analysis begins with the assumption that Dunaway presented a prima facie case of discrimination based on gender, national origin, and age. See also Waterhouse, 298 F.3d at 993; Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1554 (D.C.Cir.1997). In Aikens, the Court, in reviewing a judgment following a full trial on a Title VII claim of racial discrimination in the failure to promote, expressed surprise that the parties were still addressing whether the plaintiff had made out a prima facie case. Id. at 714, 103 S.Ct. at 1481. By framing the issue in those terms, the Court was of the view that the parties “unnecessarily evaded the ultimate question of discrimination vel non.” Id. Rejecting the view that the prima facie case method established in McDonnell Douglas was intended to be “rigid, mechanized, or ritualistic,” the Court observed that once the defendant “has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is" }, { "docid": "9817418", "title": "", "text": "F.3d 325, 330 n. 10 (5th Cir.1994). Thus, when the plaintiff challenges the defendant’s assertions and testimony, the \"fact that [the plaintiffs] case-in-chief consists solely of [his] own testimony does not prevent [him] from establishing intentional discrimination.” Id. (emphasis added); see also Vance v. Union Planters Corp., 209 F.3d 438, 442 & n. 3 (5th Cir.2000) (citing Portis with approval). In this case, Evans has challenged Bishop's claims and has put forth other evidence (in addition to his subjective belief). . This circuit has acknowledged that the McDonnell Douglas framework applies to both Title VII and ADEA claims. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 n. 3 (5th Cir.2000). . Although the district court found that Evans had established a prima facie case and pretext, the court stated that Evans failed to create a fact question about Bishop's discriminatory animus. As we discuss infra in the text, this analysis was in error. . Bishop argues that Evans does not make a showing that Rogers's statement of Villarreal's superior qualifications was untrue. Even assuming without deciding that Evans's case is lacking in this regard, Bishop’s argument is without merit. Pretext can be illustrated via circumstantial evidence, as has been done here, and does not require direct evidence. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 n. 3, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (stating that the district court erred in requiring the plaintiff to submit direct evidence). .The Reeves facts are analogous here — derogatory remarks also could not be attributed to all of the individuals responsible for making the employment decision in Reeves. However, the Supreme Court stated that “although [that was] relevant, [it was] certainly not dispositive” and went on to find the remarks of one decisionmaker to further support plaintiff's case of discrimination. See 120 S.Ct. at 2111." }, { "docid": "6452668", "title": "", "text": "defendant. White v. McDonnell Douglas Corp., 985 F.2d 434, 435 (8th Cir.1993). To establish a prima facie case of discrimination under Title VII, the ADEA, or § 1983, the plaintiff must show that the defendant terminated the plaintiff under circumstances which gave rise to an inference of unlawful discrimination. Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 945 (8th Cir.1994); Johnson v. Minnesota Historical Soc’y, 931 F.2d 1239, 1242 (8th Cir.1991) (Title VII discriminatory discharge case). If a prima facie case is established, the burden then shifts to the employer to rebut the presumption by producing evidence that the employer made the questioned employment decision for a legitimate, non-discriminatory reason. White, 985 F.2d at 435. The employer’s explanation of its actions must be “clear and reasonably specific,” Burdine, 450 U.S. at 258, 101 S.Ct. at 1096, but the employer’s burden of production has nonetheless been held to be “exceedingly light.” Batey v. Stone, 24 F.3d 1330, 1334 (11th Cir.1994) (citing Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1019 (11th Cir.1994)). If the employer meets this burden of production, the legal presumption that would justify a judgment as a matter of law based on the plaintiffs prima facie case “simply drops out of the picture,” and the plaintiff bears the burden of persuading the finder of fact that the proffered reasons are pretextual and that the employment decision was the result of discriminatory intent. St. Mary’s, — U.S. at -, 113 S.Ct. at 2749. The Supreme Court has made clear that the ultimate inquiry is whether the employer intentionally discriminated against the plaintiff. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983); White v. McDonnell Douglas Corp., 985 F.2d 434, 436 (8th Cir.1993); United States v. Johnson, 28 F.3d 1487, 1494 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 768, 130 L.Ed.2d 664 (1995); Johnson, 931 F.2d at 1242; Brooks v. Monroe Systems For Business, Inc., 873 F.2d 202, 204 (8th Cir.), cert. denied, 493 U.S. 853, 110 S.Ct. 154, 107 L.Ed.2d 112 (1989); Washburn v." }, { "docid": "11158979", "title": "", "text": "S.Ct. 1086, 148 L.Ed.2d 961 (2001); Mullen v. Princess Anne Vol. Fire Co., 853 F.2d 1130, 1137 (4th Cir.1988) (noting that the “shifting burdens of production of Burdine .... are beyond the function and expertise of the jury” and are “overly complex”); Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir.1992) (“Instructing the jury on the elements of a prima facie case, presumptions, and the shifting burden of proof is unnecessary and confusing. Instead, the court should instruct the jury to consider the ultimate question of whether defendant terminated plaintiff because of his age.”); Ryther v. KARE 11, 108 F.3d 832, 849-50 (8th Cir.1997) (en banc) (Loken, J., in Part II.A. of the dissent, which a majority of the court joined) (holding that “the jury need only decide the ultimate issue of intentional discrimination,” and usually need not make findings on the prima facie case or whether the defendant’s explanation is pretextual); Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322 (11th Cir.1999) (“We stress that it is unnecessary and inappropriate to instruct the jury on the McDonnell Douglas analysis.”). In contrast, only one circuit has not disparaged the use of the McDonnell Douglas framework in jury instructions. See Gafford v. Gen. Elec. Co., 997 F.2d 150, 167 & n. 9 (6th Cir.1993) (holding that it was not error to “guid[e] the jury through a three-stage order of proof as opposed to instructing solely on the ultimate issue of sex discrimination”). Having considered the views and observations of this and other circuits, we conclude that it is error to charge the jury with the elements of the McDonnell Douglas prima facie case. The technical ele- merits of the presumptions and shifting burdens have significant potential to confuse juries. See Costa, 299 F.3d at 855. Moreover, “at [the jury] stage, the framework unnecessarily evades the ultimate question of discrimination vel non.” Id. at 855-56, quoting Aikens, 460 U.S. at 714, 103 S.Ct. 1478. Instead of burdening the jury with the details of a framework designed to allocate burdens and promote the orderly presentation of evidence, district courts should" }, { "docid": "21679301", "title": "", "text": "Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). “The McDonnell Douglas formula, however, is applicable only in a directed verdict or summary judgment situation,” and “is not the proper vehicle for evaluating a case that has been fully tried on the merits.” Powell v. Rockwell Int’l Corp., 788 F.2d 279, 285 (5th Cir.1986). Thus, Ratliff's, holding that Reeves also guides the evaluation of cases fully tried on the merits appears to be in tension with Reeves and our own precedent. Second, Reeves did not change what a plaintiff must ultimately prove to prevail on their claim — that the adverse employment action was motivated by actual discriminatory intent. Reeves, 530 U.S. at 147, 120 S.Ct. 2097 (“In other words, ‘[i]t is not enough to disbelieve the employer; the factfinder must believe the plaintiffs explanation of intentional discrimination.’ ”) (emphasis in original) (internal citations omitted). This Court has consistently held that district courts should not frame jury instructions based upon the intricacies of the McDonnell Douglas burden shifting analysis. See, e.g., Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir.1992) (“Instructing the jury on the elements of a prima facie case, presumptions, and the shifting burden of proof is. unnecessary and confusing.”); Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471, 1478 (5th Cir.1992) (same). Instead, we have held that district courts should instruct the jury to consider the ultimate question of whether a defendant took the adverse employment action against a plaintiff because of her protected status. Cf. Walther, 952 F.2d at 127; Olitsky, 964 F.2d at 1478. Before Ratliff we only required district courts to instruct juries on the ultimate question they must answer; Reeves did not change this. ■ Consequently we should not have interpreted Reeves to alter the instructions that district courts are required to give to a jury. Third, the pretext inference described in Reeves is merely a permissive and not a mandatory inferencé. See Reeves, 530 U.S. at 148, 120 S.Ct. 2097 (noting that “there will be instances where, although the plaintiff has established a prima" }, { "docid": "23658888", "title": "", "text": "F.3d 695, 699 (5th Cir.), reh’g and suggestion for reh’g en banc denied, 49 F.3d 730 (5th Cir.1995). “On review of the district court’s denial of such a motion, the appellate court uses the same standard to review the verdict that the district court used in first passing on the motion.” Id. A jury verdict must be upheld unless “there is no legally sufficient evidentiary basis for a reasonable jury to find” as it did. Fed.R.Civ.P. 50(a)(1). “We test jury verdicts for sufficiency of the evidence under the standards set forth in Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc), overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.1997) (en banc), viewing all of the evidence and drawing all reasonable inferences in the light most favorable to the verdict.” Scott v. University of Mississippi, 148 F.3d 493, 504 (5th Cir.1998) (citing Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir.1996) (en banc), quoting Boeing, 411 F.2d at 374). 1 “The ‘factual inquiry’ in a Title VII case is ‘[whether] the defendant intentionally discriminated against the plaintiff.’ ” U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)); see also, Barnes v. Yellow Freight Systems, Inc., 778 F.2d 1096, 1099 (5th Cir.1985) (the question is whether the employer’s action “was discriminatory and a violation of Title VII”). “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089. An employer is entitled to judgment as a matter of law on this ultimate question “if the evidence taken as a whole would not allow a jury to infer that the actual reason for the [employer’s decision] was discriminatory.” Rhodes, 75 F.3d at 994. With respect to the 1995 discrimination claim, the specific question the jury had to resolve was whether MSU’s decision-makers" }, { "docid": "23511980", "title": "", "text": "F.3d 368, 373 (5th Cir.1998) (citing, in turn, Harrington v. Harris, 118 F.3d 359, 367 (5th Cir.1997))). We note that each of these cited cases involved a jury verdict in the plaintiff's favor, whereas the instant case ended in a hung jury and the district court’s declaring a mistrial. .Kanida, 363 F.3d at 576 (citing Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir.1992) and Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471, 1478 (5th Cir.1992)). . In U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), involving a Title VII bench trial, the Supreme Court reasoned that the McDonnell Douglas burden-shifting analysis drops out (i.e., the district court should examine the “ultimate question,” in our phrasing) when, inter alia, “the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case.” Id. at 714. In Aikens, the district court had previously denied the defendant’s motion for judgment as a matter of law, which the Supreme Court interpreted to be a ruling that the plaintiff had made out a prima facie case. Id. at 714 n. 4. In the instant case, the district court had merely reserved ruling on Echostar's prior motions for judgment as a matter of law and so had not yet addressed Echostar's arguments regarding Hagan's pri-ma facie case. . Brennan, 513 F.2d at 180. . Romeo, 976 F.2d at 989. . White & Son Enters., 881 F.2d at 1011. . Love, 738 F.2d at 384, 386. . York, 944 F.2d at 238. . Id. . Id. at 237, 241; Pub.L. No. 99-150, § 8, 99 Stat. 791. The note provides in full: Liability of Public Agency for Discrimination Against Employee for Assertion of Coverage Pub.L. 99-150, § 8, Nov. 14, 1985, 99 Stat. 791, provided that: “A public agency which is a State, political subdivision of a State, or an interstate governmental agency and which discriminates or has discriminated against an employee with respect to the employee’s wages or other terms or conditions of employment because on" }, { "docid": "23493958", "title": "", "text": "prima facie case); Schoenfeld v. Babbitt, 168 F.3d 1257, 1267 (11th Cir.1999) (same). Important as the prima facie case question initially is, however, both the Supreme Court and this Court have repeatedly recognized that there is a point at which a trial has progressed too far to revisit the question of whether one exists. That point is “when the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiffs proof by offering evidence of the reason for the plaintiffs rejection.” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983) (footnote omitted); accord, e.g., Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 67-68, 107 S.Ct. 367, 371, 93 L.Ed.2d 305 (1986); Cleveland, 369 F.3d at 1194 (“After a trial on the merits, an appeals court should not revisit whether the plaintiff established a prima facie case .... The only relevant question becomes whether Cleveland’s termination was motivated by her disability.”); Tidwell v. Carter Prods., 135 F.3d 1422, 1426 n. 1 (11th Cir.1998) (“Our task is not to revisit whether the plaintiff below successfully established a prima facie case of discrimination .... [T]he question of whether the plaintiff properly made out a prima facie case is no longer relevant.”); Combs v. Plantation Patterns, 106 F.3d 1519, 1539 n. 11 (11th Cir.1997) (because a full trial on the merits had been held, “the question of whether Combs properly made out a prima facie case is no longer relevant” (quotation omitted)); Richardson v. Leeds Police Dep’t, 71 F.3d 801, 806 (11th Cir.1995) (per curiam) (“Richardson argues on appeal that the district court erred by visiting whether he had established a prima facie case of discrimination after the action was fully tried on the merits, in violation of [Aikens]. We agree that it was wrong for the court to follow this procedure.”). “Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case,” the focus should no longer" }, { "docid": "9763903", "title": "", "text": "Grouped Plaintiffs, but we REVERSE the district court’s decision to grant LSUMC’s summary judgment as to Cooper and REMAND her claim for further proceedings. . Federal law governs the plaintiffs' state law claim. Louisiana looks to federal law to decide employment discrimination cases. See Plummer v. Marriott Corp., 654 So.2d 843, 848 (La.App. 4th Cir., 1995). . 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). . State Civil Service Commission Rule 8.10. . Policy No. 8005 of the Department of Health and Human Resources, Office of Charity Hospital at New Orleans. . Defendant contends that Klein was never placed in this position, but because the plaintiffs appeal a summary judgment, this court must accept the facts in the light most favorable to the plaintiffs. . 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (\"The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.”). . Copeland v. Wasserstein, Perella & Co., Inc., 278 F.3d 472, 477 (5th Cir.2002). . Id. . Amended and Codified as 42 U.S.C. § 2000e et seq. . U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). . Lindsey v. Prive Corp., 987 F.2d 324, 326 (5th Cir.1993); Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 680 (5th Cir.2001). . Id. . Id. . Id. . McDonnell, 411 U.S. at 802, 93 S.Ct. 1817. . Id. . Aikens, 460 U.S. at 714, 103 S.Ct. 1478 (citing Burdine, 450 U.S. at 254, 101 S.Ct. 1089). . Aikens, 460" } ]

[ { "docid": "9735752", "title": "", "text": "who contaminate their native soils in violation of CERCLA. Mesiti v. Microdot, Inc., 739 F.Supp. 57, 61 (D.N.H.1990). Additionally, although the locus of an action in and of itself is certainly not dispositive, it is another factor courts consider when determining which state’s choice of law to apply. See Boyle v. Jacor Communications, Inc., 799 F.Supp. 811, 813 (S.D.Ohio 1992) (holding that in deciding which state’s law applies, federal courts apply the forum state’s choice of law rules). See also Stromberg Metal Works v. Press Mechanical, Inc., 77 F.3d 928 (7th Cir.1996) (citing Klaxon Co. v. Stentor Elec. Mfg., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) (ruling that because the district court was in Illinois, that state’s choice of law rules apply)). Finally, according to the motions and evidence presented, both parties agree that Delaware’s corporate veil piercing law is similar to Ohio’s. See Vermont American’s Memo in Opposition, pp. 11-12; Plaintiffs’ Motion, pp. 7-8. It has been held that, when the choice of law between states does not substantially differ, trial courts will defer to the state whose interests would be most promoted by following their respective laws. See generally Chrysler Corp. v. Ford, 972 F.Supp. 1097, 1102-1104 (E.D.Mich.1997). Since no tangible interest of Delaware would be promoted by using Delaware law; Ohio law will be applied in analyzing plaintiffs’ attempt to pierce Vermont American’s corporate veil and attach CERCLA liability. IV. Piercing the Corporate Veil in Ohio The test for piercing the corporate veil in Ohio was set out by its Supreme Court in Belvedere Condominium Unit Owners’ Ass’n v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274, 617 N.E.2d 1075 (1993). The Belvedere court listed the following as prerequisites to disregarding the corporate form: 1.Control over the corporation by those to be held liable was so complete that the corporation had no separate mind, will, or existence, of its own; 2. Control over the corporation by those to be held liable was exercised in such a manner as to commit fraud or an Illegal act against the person seeking to disregard the corporate entity;" } ]

[ { "docid": "21743372", "title": "", "text": "rejecting inside reverse piercing, and a conservative take on veil-piercing generally—the proper tack is to let things be rather than advance Illinois law in a direction Illinois courts have not yet taken, Federal courts are not “the place for innovations in state law.” Id. (citing Great Cent. Ins. Co. v. Insurance Servs. Office, Inc., 74 F.3d 778, 786 (7th Cir. 1996)); see also Howland, — B.R. at —, 2016 WL 3176649, at *4 (refusing to “read[] tea leaves” when “no Kentucky court has issued a definitive ruling on reverse piercing”). Count VI would have to be dismissed even if Illinois did recognize reverse piercing. Again, two requirements must be met before an Illinois court will pierce the corporate veil in a conventional case. See discussion, supra, at 658-59. First, the court must find that the shareholder dominated the corporation to the point that it had no separate existence and was effectively his alter ego. Main Bank, 86 Ill.2d at 205, 56 Ill.Dec. 14, 427 N.E.2d at 101. Second, the court must conclude that failing to ignore corporate identity and holding the shareholder liable would sanction a fraud or promote injustice. Id. Gierum alleges only the first of these requirements. The amended complaint suggests that BEG did not in fact have a separate corporate existence, and that BEG and Glick were one and the same. Gierum alleges that BEG was inadequately capitalized, had no employees, did not observe corporate formalities, and occupied the same offices as several other Glick entities. (Am. Compl. ¶¶ 467, 469, 470-71). He also alleges that Glick was BEG’s manager, maintained total control over all of its operations, and was its sole decision maker, {Id. ¶ 468). The second requirement, though, Gie-rum alleges as a series of legal conclusions, not facts. He asserts that “adhering] to the fiction that BEG is a separate business entity ,., would sanction a fraud and allow Glick to hide behind sham business entities to protect Glick from personal liability.” (Id, ¶478), Two paragraphs on, Gierum adds that “allowing] Glick to hide behind BEG ... as a shield from personal liability results" }, { "docid": "21743429", "title": "", "text": "task is to strike a balance between “[t]he twin demands of detail and flexibility.” Pirelli, 631 F.3d at 442, It may not be necessary, then, for a plaintiff to plead “the specific date, place, or time of the fraudulent acts.” Id. (internal quotation omitted.). But if not, plaintiffs must find some \"alternative means of injecting precision and some measure of substantiation into their allegations of fraud.” Id. (internal quotation omitted). . The difficulty arises because a district court exercising diversity jurisdiction \"generally applies the choice-of-law rules of the state in which it sits,” but \"a bankruptcy court’s jurisdiction does not arise from diversity, but from federal bankruptcy law .... ” Jafari, 569 F.3d at .648. At the same time, state law typically governs property rights in bankruptcy cases. Id. \"Thus, there is a tension as to whether bankruptcy courts follow federal common law choice-of-law principles or the forum state’s choice-of-law principles.” Id. . Since 2012, two more decisions outside Delaware have held that Delaware would recognize reverse veil piercing. See Sky Cable, LLC v. Coley, No. 5:11cv00048, 2016 WL 3926492, at *13-15 (W.D. Va. July 18, 2016) (conceding, however, that “Delaware ... has not expressly authorized reverse veil piercing”), appeal docketed, No. 16-1920 (4th Cir. Aug. 12, 2016); Kelley v. Opportunity Fin., LLC (In re Petters Co.), 561 B.R. 738, 751-52 (Bankr. D. Minn. 2016). These decisions are no more persuasive than the non-Delaware decisions that ALT Hotel cited in 2012. See ALT Hotel, 479 B.R. at 803 n.14 . Gierum would have no piercing remedy for JZ Enterprises LP even if Delaware did recognize reverse piercing. JZ Enterprises LP is a limited partnership, not a corporation, and so has no “corporate veil” to pierce. Some states nonetheless recognize \"veil piercing” of limited partnerships. See, e.g., Canter v. Lakewood of Voorhees, 420 N.J.Super. 508, 519, 22 A.3d 68, 75 (App. Div. 2011). Others do not. See, e.g., Seidler v. Morgan, 277 S.W.3d 549, 558 n.5 (Tex. Ct. App. 2009). JZ Enterprises LP is a Delaware limited partnership. No Delaware decision has addressed whether to recognize piercing of limited partnerships, and" }, { "docid": "21743366", "title": "", "text": "mg theory, and that if the claim had been properly supported “it might have prevailed.” Cancan Dev., LLC v. Manno, No. 6429-VCL, 2015 WL 3400789, at *22 (Del. Ch. May 27, 2015), aff'd without op., 132 A.3d 750 (Del. Supr. 2016). But that was the extent of the discussion. “Might have prevailed” is not an endorsement. Just last year, the district court in Delaware declared: “[W]hether Delaware law recognizes reverse veil piercing is an unsettled question.” Crystallex Int’l Corp. v. Petróleos de Venezuela, S.A., 213 F.Supp.3d 683, 690 n.7 (D. Del. 2016). The Seventh Circuit has not retreated from its view that federal courts should be reluctant “to expand state law” when state law is unsettled. See Vision Church v. Village of Long Grove, 468 F.3d 975, 1004 (7th Cir. 2006) (internal quotation omitted); ALT Hotel, 479 B.R. at 802-03. Because Delaware law does not recognize reverse piercing, Gierum has no piercing remedy under Delaware law—and in his response, he actually concedes as much. (PI. Resp. at 13). To save Counts II-IV, he suggests instead that Illinois law governs his veil-piercing requests for JZ Enterprises LP, JZ Enterprises GP, and Play Makers. (Id. at 40-42). As discussed earlier, though, his suggestion is a nonstarter. See discussion, supra, at 660-61. These are Delaware entities formed under Delaware law. Delaware law therefore governs Gierum’s ability to invoke a reverse piercing theory no matter which choice-of-law rule applies—the Illinois rule or the federal common law rule. Illinois veil-piercing law is irrelevant. Because Counts II, III, and IV depend on an outside reverse corporate veil piercing theory that Delaware law does not recognize, the motion of the Glick defendants to dismiss these counts will be granted. Counts II, III, and IV will be dismissed. c. Request to Pierce the Veil of BEG (Count VI) Count VI will also be dismissed. Count VI is an outside reverse piercing request directed at BEG, an Illinois LLC. Illinois law therefore governs the request. But Illinois has no more recognized outside reverse piercing than Delaware. Even if it had, Gierum’s amended complaint does not allege facts sufficient to" }, { "docid": "21743362", "title": "", "text": "BEG. Gierum disagrees, contending that Illinois law applies not only to his piercing request for BEG but also to his request to pierce the veils of the Delaware entities. He argues that Illinois law applies to the Delaware entities because Illinois is the state with the most “significant relationship” to this proceeding. (See PI. Resp. at 40-42). His argument is unconvincing. In support, Gierum relies on two decisions, AT & T Global Info. Solutions Co. v. Union Tank Car Co., 29 F.Supp.2d 857 (S.D. Ohio 1998), and Chrysler Corp. v. Ford Motor Co., 972 F.Supp. 1097 (E.D. Mich. 1997). Both involved claims under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 et seq. Neither is persuasive. AT & T is unpersuasive because it is distinguishable. The case involved a re quest to assign derivative CERCLA liability to a corporate subsidiary by piercing the parent company’s corporate veil. AT & T, 29 F.Supp.2d at 862. As Gierum points out, the court in AT & T concluded that the law governing the piercing request was the law of the state with the most significant relationship to the proceeding. Id. at 865. In reaching that conclusion, however, the court relied on the general choice-of-law rule that Ohio, the forum state, employs for tort claims: the “most significant relationship” test. Id. The court did not consider section 307 of the Restatement which specifically addresses shareholder liability for corporate debts. What is more, the forum state here is Illinois. Illinois has a different choice-of-law rule. Chrysler is unpersuasive not only because it is distinguishable but also because it was wrongly decided. Unlike AT & T, Chrysler acknowledged that section 307 addresses piercing requests. Chrysler, 972 F.Supp. at 1102. But the court mistakenly characterized that section as applying “the law of the state of incorporation except where another state has a more significant relationship.” Id. at 1103 (emphasis added). Not so. Section 307 declares without exception that “[t]he local law of the state of incorporation will be applied to determine the existence and extent of a shareholder’s liability ,., to its" }, { "docid": "21743402", "title": "", "text": "payments cannot be considered property of Glick’s bankruptcy estate. Count XXI has the same problem. In that count, Gierum is attempting to recover payments the “1999 Trust Entities” made, to Glick. (Am. Compl. ¶ 639). Those entities, again, are JZ Enterprises GP, a Delaware corporation, and JZ Enterprises LP, a Delaware limited partnerships. Property of a Delaware corporation is its own, not property of its shareholders. Cohen, 89 A.3d at 95 n.130. Property of a Delaware limited partnership is its own, not property of the partners. Del. Code Ann. tit. 6, § 17-701 (2013). (And just as Glick was not a member of Play Makers, he was not a shareholder of JZ Enterprises GP or a partner in JZ Enterprises LP.) Without reverse piercing in forms Delaware has not recognized, the payments cannot be considered property of Glick’s estate. Because Gierum has not alleged a post-petition transfer of property that was property of Glick’s bankruptcy estate, the motion of the Glick defendants to dismiss Counts XVII-XIX and XXI will be granted. Those counts will be dismissed. 6. Accounting Claim (Count XXII) Count XXII, the claim requesting an accounting from Glick of certain transfers he received post-petition, fails for the same reason. The claim depends on piercing requests that Gierum cannot maintain. Gierum alleges that despite repeated requests, the 1999 Trust Entities (JZ Enterprises GP and JZ Enterprises LP) have refused to account for any transfers they made to Glick after the petition date. (Am. Compl. ¶ 644). Gierum therefore “requests that [Glick] provide an accounting of all cash flowing into and out of the 1999 Trust Entities since the filing of the Chapter 7 case.” (Id. at 87-88). But unless Gierum can pursue reverse piercing claims (and he cannot), the payments JZ Enterprises GP and JZ Enterprises LP made to Glick were payments of their own money, not property of the bankruptcy estate. Gie-rum has no accounting claim. Gierum argues that he is able to pursue an accounting from Glick because section 8(a) of the IUFTA allows creditors seeking the avoidance of a fraudulent transfer the use of equitable remedies" }, { "docid": "21743364", "title": "", "text": "creditors for corporate debts.” Restatement (Second) of Conflict of Laws § 307 (1971). Like AT & T, Chrysler also involved the law of another state. The court mentioned section 307 in determining the choice-of-law rule that Michigan, the forum state, would follow, since Michigan had no rule on the subject. Chrysler, 972 F.Supp. at 1102. The forum state here is Illinois. Illinois has a choice-of-law rule for piercing requests. Because the state of incorporation determines the governing law, Delaware law applies to the Glick entities formed in Delaware, and Illinois law applies to those formed in Illinois. b. Requests to Pierce the Veils of JZ Enterprises LP, JZ Enterprises GP, and Play Makers (Counts II-IV) The piercing requests in Counts II, III, and IV will be dismissed. These counts attempt to employ an outside reverse piercing theory against JZ Enterprises LP, JZ Enterprises GP, and Play Makers. Delaware law, which applies to the requests, has not recognized that theory. In 2012, this court considered whether Delaware had acknowledged the validity of an inside reverse piercing theory. See generally ALT Hotel, 479 B.R. at 801-03. In an extensive discussion, the court found it “highly problematic” whether Delaware would accept that theory—or for matter “reverse piercing of any kind.” Id. at 801. Delaware, the court said, had never recognized “any form of reverse piercing.” Id. at 802. Only four unpublished Delaware decisions had even mentioned the theory. Id. Not only that, but Delaware’s “exceptionally strong policy of respecting the corporate form” made its recognition “doubtful.” Id. With no guidance from the Delaware courts, and with Delaware taking a conservative approach to veil piercing, this court declined to predict that Delaware would endorse a reverse piercing theory, “moving Delaware law in a direction that Delaware’s own courts have not yet gone.” Id. at 803. “State courts, not federal courts, are the place for innovations in state law.” Id. Nothing has changed since 2012. The Delaware courts still have not recognized reverse piercing. A single unpublished Delaware trial court decision from 2015 mentioned reverse piercing, commenting that the plaintiff was pursuing a reverse pierc-" }, { "docid": "21743422", "title": "", "text": "7010), meaning a discrete set of facts giving rise to a right to relief, Matrix IV, Inc. v. American Nat’l Bank & Trust Co., 649 F.3d 539, 548 (7th Cir. 2011). Veil-piercing is a remedy, not a claim. Conseco, Inc. v. Schwartz (In re Conseco, Inc.), 330 B.R. 673, 685 (Bankr. N.D. Ill. 2005); Gillespie Cmty. Unit Sch. Dist. v. Union Pac. R.R., 398 Ill.Dec. 245, 43 N.E.3d 1155, 1180 (Ill. App. Ct. 4th Dist. 2015). Since Gierum probably placed his veil-piercing requests in separate counts as a matter of convenience, these requests will be addressed by count. .Gierum’s attempts to describe the ownership scheme and the definitions he adopts are a source of considerable confusion—particularly when it comes to the so-called “1999 Trust Entities.” Gierum defines JZ Enterprises LP and JC Illinois Ventures LP as the “Limited Partnerships” (id. ¶ 32), alleges that the JCG 1999 Trust owns the \"Limited Partnerships” (id. ¶ 33), and then defines the entities that the JCG 1999 Trust owned as the “1999 Trust Entities” (id. ¶ 33). That suggests the JCG 1999 Trust owned not only JZ Enterprises LP but also JC Illinois Ventures LP. A few paragraphs on, Gierum implies that Awesome Toys, Excitement, and Virtual were also \"1999 Trust Entities.” (See id. ¶ 37). And later, he alleges that Play Makers was also one of the “1999 Trust Entities,” (See, e.g., id. ¶ 607). But the organizational chart shows that the JCG 1999 Trust held no interest in JC Illinois Ventures LP and no direct interest in Play Makers, Awesome Toys, Excitement, or Virtual. (Id. Ex. 1). According to the chart, the JCG 1999 Trust held a direct interest in just two entities: JZ Enterprises LP and JZ Enterprises GP. (Id.). Again, the organizational chart governs over Gierum’s careless and contradictory allegations. Bogie, 705 F.3d at 609. . The Glide defendants argue that Gierum should have named as a defendant each entity that was allegedly Glide's alter ego. Because he did not, they say, counts seeking to pierce the veils of those entities, as well as Gierum’s fraudulent transfer counts, should" }, { "docid": "21743363", "title": "", "text": "piercing request was the law of the state with the most significant relationship to the proceeding. Id. at 865. In reaching that conclusion, however, the court relied on the general choice-of-law rule that Ohio, the forum state, employs for tort claims: the “most significant relationship” test. Id. The court did not consider section 307 of the Restatement which specifically addresses shareholder liability for corporate debts. What is more, the forum state here is Illinois. Illinois has a different choice-of-law rule. Chrysler is unpersuasive not only because it is distinguishable but also because it was wrongly decided. Unlike AT & T, Chrysler acknowledged that section 307 addresses piercing requests. Chrysler, 972 F.Supp. at 1102. But the court mistakenly characterized that section as applying “the law of the state of incorporation except where another state has a more significant relationship.” Id. at 1103 (emphasis added). Not so. Section 307 declares without exception that “[t]he local law of the state of incorporation will be applied to determine the existence and extent of a shareholder’s liability ,., to its creditors for corporate debts.” Restatement (Second) of Conflict of Laws § 307 (1971). Like AT & T, Chrysler also involved the law of another state. The court mentioned section 307 in determining the choice-of-law rule that Michigan, the forum state, would follow, since Michigan had no rule on the subject. Chrysler, 972 F.Supp. at 1102. The forum state here is Illinois. Illinois has a choice-of-law rule for piercing requests. Because the state of incorporation determines the governing law, Delaware law applies to the Glick entities formed in Delaware, and Illinois law applies to those formed in Illinois. b. Requests to Pierce the Veils of JZ Enterprises LP, JZ Enterprises GP, and Play Makers (Counts II-IV) The piercing requests in Counts II, III, and IV will be dismissed. These counts attempt to employ an outside reverse piercing theory against JZ Enterprises LP, JZ Enterprises GP, and Play Makers. Delaware law, which applies to the requests, has not recognized that theory. In 2012, this court considered whether Delaware had acknowledged the validity of an inside reverse piercing" }, { "docid": "21743335", "title": "", "text": "(made applicable by Fed. R. Bankr. P. 7008). Not only is the pleading immense, but its size makes it something of a mess. The drafters must have struggled to maintain control of the document as it grew, and at some point their attention appears to have lapsed. Many counts end with confusing requests for relief. Some contain claims repeated in other counts. Other claims do not find their way into a count at all. These defects do not warrant dismissal, but they pose major obstacles to an orderly analysis. For a ruling to be possible Get alone understandable), Gierum’s claims have to be reorganized and clarified. The first six counts, all dealing with veil-piercing, have overlapping and even redundant requests for relief. For example, Count I is headed “JCG 1999 Trust” but asks to pierce the “veils” of both the JCG 1999 Trust and “the JCG 1999 Trust Entities.” The “JCG 1999 Trust Entities” are JZ Enterprises LP and JZ Enterprises GP. (See Am. Compl. Ex. I). Counts II-IV, however, are separate requests to pierce the veils of JZ Enterprises LP, JZ Enterprises GP, and Play Makers. A similar problem attends the piercing claims for the JCG 2012 Trust. Count V is headed “JCG 2012 Trust” but asks to pierce the “veils” of both the JCG 2012 Trust and the “JCG 2012 Trust Entities.” The JCG 2012 Entities are defined by reference to the organizational chart. (See Am. Compl. ¶ 33, Ex. 1). But the exhibit contains no definition of “JCG 2012 Trust Entities.” They may or may not include BEG, Madhouse, and Telegraph, each of which the JCG 2012 Trust owns directly or indirectly. (Count VI, though, asks to piérce the veil of BEG—but not Madhouse and Telegraph.) To facilitate a ruling, some order has to be imposed on this chaos. Count I will be treated as if directed against the JCG 1999 Trust alone. The remaining piercing counts will be treated as directed at the entities mentioned in the headings. So Count II will be treated as directed against JZ Enterprises, LP, Count III as directed against JZ" }, { "docid": "21743377", "title": "", "text": "whether Illinois recognizes an analogous alter ego theory to disregard the separate legal identity of a trust.” Id. There have been no decisions since Wellness. With no Illinois authority on the subject and the law consequently unsettled, the correct course again is to refrain from offering an unfounded prediction—really no better than a shot in the dark—about the course of state law, making changes no Illinois court has thus far seen fit to make. ALT Hotel, 479 B.R. at 803; see, e.g., Waldron v. Huber (In re Huber), 493 B.R. 798, 810 (Bankr. W.D. Wash. 2013) (declining to “speculate as to whether Washington courts would apply the alter ego doctrine in the trust context” in the absence of Washington authority). To expand Illinois law on piercing, Gierum should have brought his action in an Illinois court. Nothing prevented him from doing so. He chose instead to sue in federal court, and “it is not the role of a federal court to expand state law in ways not foreshadowed by state precedent.” City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415, 421 (3d Cir. 2002). All Gierum offers as authority to support his trust-piercing request is Wellness, which he claims “acknowledged that Illinois recognizes an alter ego theory to disregard the separate legal entity of a trust .... ” (PI. Resp. at 51 n.8). That rather badly mischaracterizes the decision. After finding it “unclear” whether Illinois would recognize 'a trust-piercing theory, the court in Wellness decided to “proceed on the assumption that such a theory exists ... because the parties have so assumed and the merits are not at issue in this appeal.” Wellness, 727 F.3d at 774. At no point did the court say Illinois “recognizes” trust-piercing. Wellness is no help to Gierum. Even if Illinois had approved piercing the “corporate veil” of a trust, the amended complaint here alleges insufficient facts to make Gierum’s request plausible. • The JCG 1999 Trust. The facts alleged about the JCG 1999 Trust at most support the “no separate existence” element of veil-piercing. Gierum alleges that Glick owns 100 percent of the" }, { "docid": "21743401", "title": "", "text": "authorized the transfer. Boyer v. Gildea, 374 B.R. 645, 651 (N.D. Ind. 2007); Schechter v. Weiler (In re Blair), 330 B.R. 206, 213 (Bankr N.D. Ill. 2005). The deficiency here lies with the second element. In Counts XVII-XIX, Gie-rum is attempting to recover payments he alleges Play Makers made to Factor and Bari for legal services and to Alilovich for reasons that are unclear. (See Am. Compl. ¶¶ 350-52, 606, 615, 624). Whether Glick had an interest in those payments, potentially making them property of his estate, depends on applicable state law. Covey v. Peoria Speakeasy, Inc. (In re Duckworth), Nos. 10-83603, 11-8092, 2013 WL 1397456, at *3 (Bankr. C.D. Ill. Apr. 5, 2013). Play Makers is a Delaware LLC. (Am. Compl. ¶ 106). Under Delaware law, its assets were its own, not the assets of its members (and Glick was not a member of Play Makers in any event). See discussion, supra, at 669. Absent the use of a reverse piercing theory that Delaware has yet to adopt, see discussion, supra, at 661-62, the payments cannot be considered property of Glick’s bankruptcy estate. Count XXI has the same problem. In that count, Gierum is attempting to recover payments the “1999 Trust Entities” made, to Glick. (Am. Compl. ¶ 639). Those entities, again, are JZ Enterprises GP, a Delaware corporation, and JZ Enterprises LP, a Delaware limited partnerships. Property of a Delaware corporation is its own, not property of its shareholders. Cohen, 89 A.3d at 95 n.130. Property of a Delaware limited partnership is its own, not property of the partners. Del. Code Ann. tit. 6, § 17-701 (2013). (And just as Glick was not a member of Play Makers, he was not a shareholder of JZ Enterprises GP or a partner in JZ Enterprises LP.) Without reverse piercing in forms Delaware has not recognized, the payments cannot be considered property of Glick’s estate. Because Gierum has not alleged a post-petition transfer of property that was property of Glick’s bankruptcy estate, the motion of the Glick defendants to dismiss Counts XVII-XIX and XXI will be granted. Those counts will be" }, { "docid": "21743367", "title": "", "text": "that Illinois law governs his veil-piercing requests for JZ Enterprises LP, JZ Enterprises GP, and Play Makers. (Id. at 40-42). As discussed earlier, though, his suggestion is a nonstarter. See discussion, supra, at 660-61. These are Delaware entities formed under Delaware law. Delaware law therefore governs Gierum’s ability to invoke a reverse piercing theory no matter which choice-of-law rule applies—the Illinois rule or the federal common law rule. Illinois veil-piercing law is irrelevant. Because Counts II, III, and IV depend on an outside reverse corporate veil piercing theory that Delaware law does not recognize, the motion of the Glick defendants to dismiss these counts will be granted. Counts II, III, and IV will be dismissed. c. Request to Pierce the Veil of BEG (Count VI) Count VI will also be dismissed. Count VI is an outside reverse piercing request directed at BEG, an Illinois LLC. Illinois law therefore governs the request. But Illinois has no more recognized outside reverse piercing than Delaware. Even if it had, Gierum’s amended complaint does not allege facts sufficient to make out a plausible request to pierce BEG’s corporate veil. No Illinois decision approves reverse piercing. The only one that ever did was Crum v. Krol, 99 Ill.App.3d 651, 54 Ill.Dec. 864, 425 N.E.2d 1081 (1st Dist. 1981), an inside reverse piercing case in which a plaintiff shareholder and his corporation were treated “as a single entity” to allow him to recover damages for payments the corporation had made to the defendant. Id. at 661, 54 Ill.Dec. 864, 425 N.E.2d at 1088-89. But Crum is no longer good law. In 1994, the Illinois Supreme Court categorically rejected inside reverse piercing, see In re Rehabilitation of Centaur Ins. Co., 158 Ill.2d 166, 178-74, 198 Ill.Dec. 404, 632 N.E.2d 1015, 1018 (1994), a view the court reaffirmed in Forsythe v. Clark USA, Inc., 224 Ill.2d 274, 297-98, 309 Ill.Dec. 361, 864 N.E.2d 227, 241-42 (2007). Centaur and Forsythe represent a “broad-based and explicit rejection of reverse piercing.” Trossman v. Philipsborn, 373 Ill.App.3d 1020, 1053, 312 Ill.Dec. 156, 869 N.E.2d 1147, 1174 (1st Dist. 2007); see also Presser," }, { "docid": "21743423", "title": "", "text": "suggests the JCG 1999 Trust owned not only JZ Enterprises LP but also JC Illinois Ventures LP. A few paragraphs on, Gierum implies that Awesome Toys, Excitement, and Virtual were also \"1999 Trust Entities.” (See id. ¶ 37). And later, he alleges that Play Makers was also one of the “1999 Trust Entities,” (See, e.g., id. ¶ 607). But the organizational chart shows that the JCG 1999 Trust held no interest in JC Illinois Ventures LP and no direct interest in Play Makers, Awesome Toys, Excitement, or Virtual. (Id. Ex. 1). According to the chart, the JCG 1999 Trust held a direct interest in just two entities: JZ Enterprises LP and JZ Enterprises GP. (Id.). Again, the organizational chart governs over Gierum’s careless and contradictory allegations. Bogie, 705 F.3d at 609. . The Glide defendants argue that Gierum should have named as a defendant each entity that was allegedly Glide's alter ego. Because he did not, they say, counts seeking to pierce the veils of those entities, as well as Gierum’s fraudulent transfer counts, should be dismissed under Rule 19, Fed. R. Civ. P. 19 (made applicable by Fed. R. Bankr. P. 7019), The Glick defendants are right that no Glick entity other than the JCG 2012 Trust is a defendant. But assuming the entities in question are indeed parties that must be joined if feasible, see Fed. R. Civ, P. 19(a), the Glide defendants have not explained why their join-der is not feasible, Fed. R. Civ. P. 19(b), a prerequisite to dismissal on this ground, Thomas v. United States, 189 F.3d 662, 667 (7th Cir. 1999); see also Askew v. Sheriff of Cook Cnty., 568 F.3d 632, 635 (7th Cir. 2009) (noting that even then dismissal is not automatic). Before dismissal, moreover, a plaintiff must be given the chance to join the missing party. See Fed. R. Civ. P. 19(a)(2); 7 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice & Procedure § 1609 at 132 (3d ed. 2001) (noting that the court may decide amendment is preferable to dismissal). So dismissal of the veil-piercing and fraudulent" }, { "docid": "21743360", "title": "", "text": "Seventh Circuit has not resolved the “persisting uncertainty as to whether state or federal law supplies the choice of law rules in a bankruptcy case.” In re Jafari, 569 F.3d 644, 649 (7th Cir. 2009); see also Knauer v. Kitchens (In re Eastern Livestock, Co., LLC), 547 B.R. 277, 283-84 (Bankr. S.D. Ind. 2016). That difficulty disappears, however, when the federal and state choice-of-law rules produce the same result. See Jafari, 569 F.3d at 649. If the two rules honor the same governing substantive law, there is no need to decide which one applies. See, e.g., In re Stoecker, 5 F.3d 1022, 1029 (7th Cir. 1993). The two possible sources of choice-of-law rules here, federal common law and Illinois law (since Illinois is the forum state), both apply the law ⅜ of the state of incorporation to requests to pierce the corporate veil. “[F]ederal common law generally follows the Restatement (Second) of Conflict of Laws.” Eastern Livestock, 547 B.R, at 284. Section 307 of the Restatement says that “[t]he local law of the state of incorporation will be applied to determine the existence and extent of a shareholder’s liability ... to its creditors for corporate debts.” Restatement (Second) of Conflict of Laws § 307 (1971); see, e.g., Cyprus Amax Minerals Co. v. TCI Pac. Commc’ns, Inc., No. 11-CV-252-GKF-PJC, 2012 WL 4006122, at *4-5 (N.D. Okla. Sept. 12, 2012) (applying section 307 as a matter of federal common law). Illinois likewise “applies the law of the state of incorporation for veil piercing claims.” Wachovia Sec., LLC v. Banco Panamericano, Inc., 674 F.3d 743, 751 (7th Cir. 2012); see also Westmeyer v. Flynn, 382 Ill.App.3d 952, 957, 321 Ill.Dec. 406, 889 N.E.2d 671, 676 (1st Dist. 2008). The targets of Gierum’s piercing requests (at least in Counts II-IV and VI) are JZ Enterprises LP, JZ Enterprises GP, Play Makers, and BEG. JZ Enterprises LP, JZ Enterprises GP, and Play Makers are all Delaware entities. Delaware law therefore applies to the piercing requests directed at them. BEG, on the other hand, is an Illinois entity. Illinois applies to the piercing request directed at" }, { "docid": "21743434", "title": "", "text": "191 Cal.App.4th at 521, 121 Cal.Rptr.3d at 146 (internal quotation omitted). A trust, they say, is instead “fundamentally a relationship.\" Babitt v. Vebeliunas (In re Vebeliunas), 252 B.R. 878, 886 (Bankr. S.D.N.Y. 2000), rev’d, 2002 WL 115656 (S.D.N.Y. Jan. 28, 2002). Without the kind of separate legal existence a corporation has, a trust \"cannot have an alter ego.” Id. at 887. And because it has none, piercing a trust makes no sense: a person or entity cannot exercise undue control over what is effectively a \"non-entity.” Greenspan, 191 Cal.App.4th at 522, 121 Cal.Rptr.3d at 146. Illinois courts, on the other hand, have frequently said that a “written trust possesses a distinct legal existence” and is more than just “an arrangement relating to property.” See, e.g., Sullivan v. Kodsi, 359 Ill.App.3d 1005, 1010, 296 Ill.Dec. 710, 836 N.E.2d 125, 131 (1st Dist. 2005) (citing cases). But this crumb is not enough to support a prediction that Illinois would actually endorse the piercing of trusts. . Gierum alleges indignantly that Glick “treats the property of the JCG 1999 Trust as his own property.” (Am. Compl. ¶¶ 361, 369). The trust declaration entitles him to. (See id. Ex. 2 at 2, 4-5). . Glick is one step farther removed from these entities, since he was neither a partner in JZ Enterprises LP, a shareholder of JZ Enterprises GP, a member of Play Makers, nor a member of BEG. The partners in JZ Enterprises LP are other Glick entities: JZ Enterprises GP and the JCG 1999 Trust. (See Am. Compl. ¶¶ 32-33, 107, 381; Ex. 1). The shareholders of JZ Enterprises GP are the JCG 1999 Trust and Glick’s sons (or their trusts). (See Am. Compl. ¶¶ 32, 379, 399; Ex. 1). The sole member of Play Makers is JZ Enterprises LP. (See Am. Compl. ¶ 107). The members of BEG are the JCG 2012 Trust and Ashworth. (See Am. Compl. ¶¶ 206, 271, 275; Ex.,1). . He is not the only beneficiary, of course. Stacey and the Glick children are beneficiaries as well. See In re Estate of Zukerman, 218 Ill.App.3d 325, 332," }, { "docid": "21743336", "title": "", "text": "the veils of JZ Enterprises LP, JZ Enterprises GP, and Play Makers. A similar problem attends the piercing claims for the JCG 2012 Trust. Count V is headed “JCG 2012 Trust” but asks to pierce the “veils” of both the JCG 2012 Trust and the “JCG 2012 Trust Entities.” The JCG 2012 Entities are defined by reference to the organizational chart. (See Am. Compl. ¶ 33, Ex. 1). But the exhibit contains no definition of “JCG 2012 Trust Entities.” They may or may not include BEG, Madhouse, and Telegraph, each of which the JCG 2012 Trust owns directly or indirectly. (Count VI, though, asks to piérce the veil of BEG—but not Madhouse and Telegraph.) To facilitate a ruling, some order has to be imposed on this chaos. Count I will be treated as if directed against the JCG 1999 Trust alone. The remaining piercing counts will be treated as directed at the entities mentioned in the headings. So Count II will be treated as directed against JZ Enterprises, LP, Count III as directed against JZ Enterprises GP, Count IV as directed against Play Makers, Count V as directed against the JCG 2012 Trust alone, and Count VI as directed against BEG. No veil-piercing requests against any other entity will be considered, even if the JCG 1999 Trust or JCG 2012 Trust arguably owned some interest in the entity. Then there are the claims that do not appear in any count. Gierum is asserting (or at least believes he is asserting) turnover claims under section 542(a) of the Code, 11 U.S.C. § 542(a), against Glick’s purported alter egos. (See PI, Resp. at 3, 37). But the amended complaint has no count with a turnover claim: none of the requests for relief associated with any count specifically asks for turnover. The omission is surprising since Gierum is employing his veil-piercing theories partly to set up turnover claims that will force the assets of the alter egos into Glick’s bankruptcy estate. See discussion, supra, at 649. He goes to great lengths to set up those claims but never makes them directly. Just as" }, { "docid": "21743361", "title": "", "text": "incorporation will be applied to determine the existence and extent of a shareholder’s liability ... to its creditors for corporate debts.” Restatement (Second) of Conflict of Laws § 307 (1971); see, e.g., Cyprus Amax Minerals Co. v. TCI Pac. Commc’ns, Inc., No. 11-CV-252-GKF-PJC, 2012 WL 4006122, at *4-5 (N.D. Okla. Sept. 12, 2012) (applying section 307 as a matter of federal common law). Illinois likewise “applies the law of the state of incorporation for veil piercing claims.” Wachovia Sec., LLC v. Banco Panamericano, Inc., 674 F.3d 743, 751 (7th Cir. 2012); see also Westmeyer v. Flynn, 382 Ill.App.3d 952, 957, 321 Ill.Dec. 406, 889 N.E.2d 671, 676 (1st Dist. 2008). The targets of Gierum’s piercing requests (at least in Counts II-IV and VI) are JZ Enterprises LP, JZ Enterprises GP, Play Makers, and BEG. JZ Enterprises LP, JZ Enterprises GP, and Play Makers are all Delaware entities. Delaware law therefore applies to the piercing requests directed at them. BEG, on the other hand, is an Illinois entity. Illinois applies to the piercing request directed at BEG. Gierum disagrees, contending that Illinois law applies not only to his piercing request for BEG but also to his request to pierce the veils of the Delaware entities. He argues that Illinois law applies to the Delaware entities because Illinois is the state with the most “significant relationship” to this proceeding. (See PI. Resp. at 40-42). His argument is unconvincing. In support, Gierum relies on two decisions, AT & T Global Info. Solutions Co. v. Union Tank Car Co., 29 F.Supp.2d 857 (S.D. Ohio 1998), and Chrysler Corp. v. Ford Motor Co., 972 F.Supp. 1097 (E.D. Mich. 1997). Both involved claims under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 et seq. Neither is persuasive. AT & T is unpersuasive because it is distinguishable. The case involved a re quest to assign derivative CERCLA liability to a corporate subsidiary by piercing the parent company’s corporate veil. AT & T, 29 F.Supp.2d at 862. As Gierum points out, the court in AT & T concluded that the law governing the" }, { "docid": "21743435", "title": "", "text": "1999 Trust as his own property.” (Am. Compl. ¶¶ 361, 369). The trust declaration entitles him to. (See id. Ex. 2 at 2, 4-5). . Glick is one step farther removed from these entities, since he was neither a partner in JZ Enterprises LP, a shareholder of JZ Enterprises GP, a member of Play Makers, nor a member of BEG. The partners in JZ Enterprises LP are other Glick entities: JZ Enterprises GP and the JCG 1999 Trust. (See Am. Compl. ¶¶ 32-33, 107, 381; Ex. 1). The shareholders of JZ Enterprises GP are the JCG 1999 Trust and Glick’s sons (or their trusts). (See Am. Compl. ¶¶ 32, 379, 399; Ex. 1). The sole member of Play Makers is JZ Enterprises LP. (See Am. Compl. ¶ 107). The members of BEG are the JCG 2012 Trust and Ashworth. (See Am. Compl. ¶¶ 206, 271, 275; Ex.,1). . He is not the only beneficiary, of course. Stacey and the Glick children are beneficiaries as well. See In re Estate of Zukerman, 218 Ill.App.3d 325, 332, 161 Ill.Dec. 121, 578 N.E.2d 248, 253 (1st Dist. 1991). Gierum admits as much, at least where the Glick children are concerned. (See Am. Compl. ¶332 (“The JCG 1999 Trust was created for estate planning purposes to benefit Glick's sons .... \"). Contradicting this allegation, Gierum later implies incorrectly that Glick is the sole beneficiary. (See Am. Compl. ¶ 371). If he were, the legal and equitable interests in the trust would merge, and the trust would terminate. See Restatement (Third) of Trusts § 69 (2003). No merger occurs, however, with a self-settled trust where the settlor is trustee but not the sole beneficiary. Id. § 69 cmt. c, illus. 2. . The Glick defendants have not moved to dismiss the turnover claims in so many words, perhaps because the claims do not appear in any counts. But Gierum’s piercing requests are plainly designed to set up turnover claims; otherwise, títere would be no point to the requests. See discussion, supra, at 649. Because the Glick defendants moved to dismiss the piercing requests, their motion" }, { "docid": "21743373", "title": "", "text": "ignore corporate identity and holding the shareholder liable would sanction a fraud or promote injustice. Id. Gierum alleges only the first of these requirements. The amended complaint suggests that BEG did not in fact have a separate corporate existence, and that BEG and Glick were one and the same. Gierum alleges that BEG was inadequately capitalized, had no employees, did not observe corporate formalities, and occupied the same offices as several other Glick entities. (Am. Compl. ¶¶ 467, 469, 470-71). He also alleges that Glick was BEG’s manager, maintained total control over all of its operations, and was its sole decision maker, {Id. ¶ 468). The second requirement, though, Gie-rum alleges as a series of legal conclusions, not facts. He asserts that “adhering] to the fiction that BEG is a separate business entity ,., would sanction a fraud and allow Glick to hide behind sham business entities to protect Glick from personal liability.” (Id, ¶478), Two paragraphs on, Gierum adds that “allowing] Glick to hide behind BEG ... as a shield from personal liability results in a substantial injustice and is tantamount to a fraud on his creditors.” (Id. ¶ 480). These allegations simply restate the second requirement for veil-piercing. They fail to explain why observing BEG’s corporate form would permit fraud or promote injustice. It is no answer, as Gierum seems to believe, that observing it would allow Glick to shield himself from liability. Limited liability is the point of incorporating. See Import Sales, Inc. v. Continental Bearings Corp., 217 Ill.App.3d 893, 903, 160 Ill.Dec. 634, 577 N.E.2d 1205, 1212 (1st Dist. 1991) (stating that “[t]he mere formation of a corporation” does not make its shareholders the corporation’s alter egos). Because Illinois does not recognize the reverse piercing theory on which Count VI depends, and because Count VI fails to allege the elements necessary for piercing BEG’s corporate veil in any event, the motion of the Glick defendants to dismiss Count VI will be granted. Count VI will be dismissed. d. Requests to Pierce the “Corporate Veils” of the JCG 1999 Trust and the JCG 2012 Trust (Counts I" }, { "docid": "21743374", "title": "", "text": "in a substantial injustice and is tantamount to a fraud on his creditors.” (Id. ¶ 480). These allegations simply restate the second requirement for veil-piercing. They fail to explain why observing BEG’s corporate form would permit fraud or promote injustice. It is no answer, as Gierum seems to believe, that observing it would allow Glick to shield himself from liability. Limited liability is the point of incorporating. See Import Sales, Inc. v. Continental Bearings Corp., 217 Ill.App.3d 893, 903, 160 Ill.Dec. 634, 577 N.E.2d 1205, 1212 (1st Dist. 1991) (stating that “[t]he mere formation of a corporation” does not make its shareholders the corporation’s alter egos). Because Illinois does not recognize the reverse piercing theory on which Count VI depends, and because Count VI fails to allege the elements necessary for piercing BEG’s corporate veil in any event, the motion of the Glick defendants to dismiss Count VI will be granted. Count VI will be dismissed. d. Requests to Pierce the “Corporate Veils” of the JCG 1999 Trust and the JCG 2012 Trust (Counts I and V) Counts I and V will be dismissed as well. These counts are one step beyond Count VI. They request not only reverse piercing of Illinois entities but reverse piercing of two Illinois trusts, the JCG 1999 Trust and the JCG 2012 Trust. Just as Illinois has not yet recognized reverse piercing, it has yet to recognize piercing a trust’s “veil.” The validity of his legal theories aside, Gierum has not alleged facts suggesting the separate identities of the two trusts should be ignored. Veil-piercing of trusts is as controversial as reverse-piercing of corporations—but without the extensive case-law. The few courts to address the question have disagreed on the theory’s validity. Compare, e.g., Babitt v. Vebeliunas (In re Vebeliunas), Nos. 01 CIV 1108, 1225, 1230, 2002 WL 115656, at *4-5 (S.D.N.Y. Jan. 28, 2002) (predicting New York would approve piercing of trusts), rev’d on other grounds, 332 F.3d 85 (2d Cir. 2003); Gordon v. Harman (In re Harman), 512 B.R. 321, 341 (Bankr. N.D. Ga. 2014) (finding reverse piercing of trusts under Georgia law" } ]

[ { "docid": "22709117", "title": "", "text": "Mr. Justice Marshall delivered the opinion of the Court. Twenty-two coal mine operators (Operators) brought this suit to test the constitutionality of certain aspects of Title IY of the Federal Coal Mine Health and Safety Act of 1969, 83 Stat. 792, as amended by the Black Lung Benefits Act of 1972, 86 Stat. 150, 30 U. S. C. § 901 et seq. (1970 ed. and Supp. IV). The Operators, potentially liable under the amended Act to compensate certain miners, former miners, and their survivors for death or total disability due to pneumoconiosis arising out of employment in coal mines, sought declaratory and in-junctive relief against the Secretary of Labor and the Secretary of Health, Education, and Welfare, who are responsible for the administration of the Act and the promulgation of regulations under the Act. On cross-motions for summary judgment, a three-judge District Court for the Eastern District of Kentucky, convened pursuant to 28 U. S. C. §§ 2282 and 2284, found the amended Act constitutional on its face, except in regard to two provisions concerning the determination of a miner's total disability due to pneumoconiosis. The court enjoined the Secretary of Labor from further application of those two provisions. 385 F. Supp. 424 (1974). After granting a stay of the three-judge court's order, 421 U. S. 944 (1975), we noted probable jurisdiction of the cross-appeals. 421 U. S. 1010 (1975). We conclude that the amended Act, as interpreted, is constitutionally sound against the Operators' challenges. I Coal workers’ pneumoconiosis — black lung disease— affects a high percentage of American coal miners with severe, and frequently crippling, chronic respiratory impairment. The disease is caused by long-term inhalation of coal dust. Coal workers’ pneumoconiosis (here after pneumoconiosis) is generally diagnosed on the basis of X-ray opacities indicating nodular lesions on the lungs of a patient with a long history of coal dust exposure. As the Surgeon General has stated, however, post-mortem examination data have indicated a greater prevalence of the disease than X-ray diagnosis reveals. According to the Surgeon General, pneumoconiosis is customarily classified as “simple” or “complicated.” Simple pneumoconiosis, ordinarily identified" } ]

[ { "docid": "22578980", "title": "", "text": "from the government’s operation of the uranium enrichment facilities, and which Congress also concluded were themselves partially responsible for the problem the statute seeks to remedy. In Alton, the Court invalidated a statute that required railroads to establish a pension fund covering both current employees and former employees who had worked for the railroad within the year before passage of the statute because of the retroactive effect of the statute. Alton bears little resemblance to this case, and it appears that Alton, in any event, has effectively been overruled. See Pension Benefit, 467 U.S. at 733, 104 S.Ct. 2709 (questioning whether Alton “ ‘retains vitality’ despite the changes in judicial review of economic legislation that have occurred in the ensuing years”); see also Turner Elkhorn, 428 U.S. at 19, 96 S.Ct. 2882. We note that neither Edison nor any of its amici relies on Alton. Eastern Enterprises, which is the focus of the parties’ attention, is also starkly different from this case. There, the employees’ claims of entitlement to the payment of future health benefits arose from a number of National Bituminous Coal Wage Agreements (“NBCWAs” or “Agreements”) between the employees’ union and various coal mine operators. The statute in Eastern Enterprises was justified on the ground that expectations of future benefits had been created by these agreements. A majority of the Court concluded that the obligation to pay benefits could not be imposed on companies that had no role in creating those expectations. The plurality noted that Agreements negotiated in 1974, 1978, and subsequently first suggested an industry commitment to the funding of health benefits for former employees and their dependents. Eastern Enters., 524 U.S. at 530, 118 S.Ct. 2131. The plurality emphasized, however, that Eastern “ceased its coal mining operations in 1965 and neither participated in negotiations nor agreed to make contributions in connection with the [employees’] Benefit Plans under the 1974, 1978 or subsequent NBCWA’s.” Id. Under the particular facts of that case, the plurality accordingly reasoned that the Coal Act’s retroactive provisions violated the Takings Clause of the Fifth Amendment. In his concurrence, Justice Kennedy agreed" }, { "docid": "2176094", "title": "", "text": "49 L.Ed.2d 752 (1976). Applying this deferential standard, the Turner Elkhom Court upheld the constitutionality of a statutory requirement that coal mine operators provide compensation for miners who had been disabled by black lung disease arising out of employment in mines for which the operators were responsible — and provide such compensation regardless of whether the miners had left employment in the coal industry before the statute was passed. Legislation readjusting rights and burdens does not violate the Due Process Clause “solely because it upsets otherwise settled expectations,” Turner Elkhom teaches, and “[tjhis is true even though the effect of the legislation is to impose a new duty or liability based on past acts.” Id. at 16, 96 S.Ct. at 2892. It was not irrational for Congress to spread the burden as it did, the Turner Elkhom Court went on to hold, because black lung disease had been “bred in the past” and the operators had profited in the past from the labor of those who became afflicted with the disease. Id. at 18, 96 S.Ct. at 2893. Judge Easterbrook has observed that in Turner Elkhom the Supreme Court “said, as bluntly as a court ever does, that it was out of the business of reviewing the wisdom of statutes” — a proposition that Judge Easterbrook takes cum grano salis, of course. Easterbrook, “The Constitution of Business,” 11 Geo.Mason U.L.Rev. 53 (1988). Although the statute at issue in Turner Elkhom involved compensation for illness or death, as opposed simply to meeting a “generalized need for funds” on the part of former employees, Turner Elkhorn, 428 U.S. at 19, 96 S.Ct. at 2894, no such distinguishing factor was present in Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984). The statute at issue in Gray, the Multiemployer Pension Plan Amendments Act of 1980, required an employer withdrawing from a mul-ti-employer pension plan to pay a share of the plan’s unfunded vested liabilities. A unanimous Supreme Court held that it was not unconstitutional, under the Due Process Clause, for Congress to make" }, { "docid": "13082881", "title": "", "text": "showing ... that there has been a substantial change in the legal climate that suggests a new understanding of the governing legal rules which may require different application.” 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure, § 4425, at 253-54 (1981). Although myriad courts have upheld the constitutionality of CERCLA’s retroactive application, the Supreme Court recently decided Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998), in which the Court invalidated retroactive application of the Coal Industry Retiree Health Benefit Act of 1992 (“Coal Act”), 26 U.S.C. §§ 9701-22. Because Eastern Enterprises signals a change in the legal climate, we reject CFA’s preclusion argument. 2. APU contends that retroactive application of CERCLA violates substantive due process. In general, due process is satisfied “simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose.” Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 730, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984). Legislative acts adjusting the burdens and benefits of economic life carry a presumption of constitutionality, and the burden of proving that the legislature acted in an arbitrary and irrational way is on the party complaining of the violation. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). The issue here is squarely framed by examining two Supreme Court cases. First, in Usery, the Supreme Court decided a challenge to Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended by the Black Lung Benefits Act of 1972, 30 U.S.C. § 901, et seq., which, inter alia, made coal mine operators responsible for paying benefits to miners-who left employment in the industry before the statute’s effective date. 428 U.S. at 14-15, 96 S.Ct. 2882. A group of operators challenged this retroactive application under the Due Process Clause, arguing that “to impose liability upon them for former employees’ disabilities is impermis-sibly to charge them with an unexpected liability for past, completed acts that were legally proper" }, { "docid": "22578992", "title": "", "text": "has failed to establish that the retroactivity violated the utilities’ reasonable expectations. That issue requires more extensive discussion. V One of the key questions in the Supreme Court’s retroactivity decisions is whether the regulated party could have reasonably expected that it would be free from the regulatory exaction. Those decisions suggest that if the regulated party could have reasonably expected that it would be subject to regulation, there can be no constitutional Due Process violation. See, e.g., Concrete Pipe & Prods. of Cal., 508 U.S. at 646, 113 S.Ct. 2264. This critical theme was reiterated by each of the separate opinions in Eastern Enterprises. There the question was directed to reasonable expectations at the time that Eastern operated coal mines. The plurality concluded that the Coal Act. constituted an impermissible taking because, in part, it “substantially interferes with Eastern’s reasonable investment-backed expectations.” Eastern Enters., 524 U.S. at 532, 118 S.Ct. 2131. In reaching this conclusion, the plurality emphasized, in part, that Eastern had left the coal mining industry and had ceased to employ miners years before “lifetime medical benefits ... [could] have been viewed as promised” by the industry. Id. at 535, 118 S.Ct. 2131. Justice Kennedy, on Due Process grounds, agreed with the plurality that the three-factor regulatory takings analysis set forth in Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), including investment-backed expectations, was relevant to the analysis of the Coal Act’s retroactivity. Eastern Enters, 524 U.S. at 547, 118 S.Ct. 2131 (Kennedy, J., concurring). He sustained Eastern’s challenge to the Coal Act, in part, because the miners’ expectations of future health benefits were “created by promises and agreements made long after Eastern left the coal business.” Id. at 550, 118 S.Ct. 2131. The dissenters likewise focused on Eastern’s reasonable expectations to conclude that “the historical circumstances, taken together, prevent Eastern from showing that the Coal Act’s ‘reachback’ liability provision so frustrates Eastern’s reasonable settled expectations as to impose an unconstitutional liability.” Id. at 559, 118 S.Ct. 2131. Thus, in Eastern Enterprises there was remarkable agreement on" }, { "docid": "17562060", "title": "", "text": "U.S. at-,- -, 118 S.Ct. at 2148, 2149-53 (analyzing the Coal Act pursuant to the three factors— economic impact, interference with investment-backed expectations, and the character of the governmental action- — set forth in Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 106 S.Ct. 1018, 89 L.Ed.2d 166 (1986)). But the Association has never asserted a claim under the Takings Clause in this litigation, either in the district court or on appeal. Even if appellant had attempted, in light of Eastern Enterprises, to switch strategies and specifically to assert for the first time in its supplemental brief that the Coal Act’s assignment provision constitutes an unconstitutional taking of its members’ property, we would in all likelihood have deemed the claim waived and declined to address it. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). We certainly will not apply a takings analysis to resolve a due process challenge or engage in a free-wheeling, non-textual examination of the “constitutionality” of the Coal Act. Nevertheless, we are still obliged to determine just how the decision in Eastern Enterprises affects the one and only constitutional question properly before this court: namely, whether the Coal Act as applied to the Association’s members violates the Due Process Clause. But far from controlling the due process challenge in this case, as appellant contends, the plurality opinion in Eastern Enterprises expressly declined to rule on the petitioner’s due process challenge, reasoning that resolution of the takings question made such a ruling unnecessary. See Eastern Enters., — U.S. at -, 118 S.Ct. at 2153. And although the plurality noted that “analysis of legislation under the Takings and Due Process Clauses is correlated to some extent,” id. (citing Connolly, 475 U.S. at 223), a correlation is not an equivalency. The plurality’s conclusion that the Coal Act effected an unconstitutional taking therefore does not answer the question whether the Act, as applied in analogous circumstances, also violates the Due Process Clause. We also agree with the government that Justice Kennedy’s concurrence in the judgment is of no help in appellant’s efforts to" }, { "docid": "12881161", "title": "", "text": "by a rational means.” Pension Benefit Guarantee Corp. v. R.A. Gray & Co., 467 U.S. 717, 729, 104 S.Ct. 2709, 2717-18, 81 L.Ed.2d 601 (1984). Because LTV does not quarrel with the legitimacy of Congress’s purpose in enacting the Coal Act, we need decide only whether the means chosen are “demonstrably arbitrary or irrational.” Duke Power, 438 U.S. at 83-84, 98 S.Ct. at 2636. The doctrinal landscape which confronts LTVs due process challenge encompasses unusually inhospitable legal terrain. Since its decision in Railroad Retirement Board v. Alton Railroad Co., 295 U.S. 330, 55 S.Ct. 758, 79 L.Ed. 1468 (1935), the Supreme Court has proven reticent to involve itself in decisions about economic policy. We are aware of no post-1935 cases in which the Supreme Court invalidated an economic regulation on substantive due process grounds. On the contrary, the Court’s posture has been one of deference to Congress’s economic policy prerogatives. See, e.g., Concrete Pipe & Prods. v. Construction Laborers Pension Trust, — U.S.-, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (upholding retroactive effect of the withdrawal liability provisions of the Multiemployer Pension Plan Amendments Act); General Motors Corp. v. Romein, 503 U.S. 181, 190-92, 112 S.Ct. 1105, 1112, 117 L.Ed.2d 328 (1992) (upholding retroactive legislation affecting Michigan’s compensation benefits law); United States v. Sperry Corp., 493 U.S. 52, 110 S.Ct. 387, 107 L.Ed.2d 290 (1989) (upholding retroactive effect of federal legislation with respect to the costs of an international claims tribunal); PBGC v. R.A Gray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984) (upholding retroactive effect of federal legislation imposing liability for withdrawal from pension plans); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976) (upholding retroactive effect of federal law imposing liability on coal mine employers for employee disabilities caused by black lung disease); see also Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954) (upholding retroactive application of federal legislation concerning immigration and deportation of aliens); Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945) (upholding repeal" }, { "docid": "22839858", "title": "", "text": "not merely draw upon antecedent acts, but attach a completely new legal significance to these acts and therefore should be considered a retroactive law. See, United States v. Shell Oil Co., supra; State ex rel. Brown v. Georgeoff, supra; United States v. Reilly Tar and Chemical Corp., supra. d. Is Retroactive Application of RCRA and CERCLA Unconstitutional? Mere retroactive application does not render a statute unconstitutional. Defendants assert, as a defense, that the retroactive application of RCRA and CERCLA are violative of substantive due process. Their argument lacks precedential support and is unpersuasive. Ignoring the numerous cases discussed herein which consistently hold either that RCRA/CERCLA are not retroactive or that they are retroactive but are nevertheless not unconstitutional by virtue of their retroactive application, defendants place complete reliance on two recent cases, neither of which involves RCRA or CERCLA, and both of which found that retroactive application of the subject statute did not violate the Due Process Clause of the Fifth Amendment, such retroactive effect being in furtherance of a rational legislative purpose. See, Usery v. Turner Elkhom Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976); Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984). In Turner Elkhom, the Court considered a constitutional challenge to the retroactive effects of the Federal Coal Mine Health & Safety Act of 1969 as amended by the Black Lung Benefits Act of 1972. Under Title IV of that Act, coal mine operators were required to compensate former employees disabled by pneumo-coniosis even though those employees had terminated their work in the industry before the statute was enacted. The Court had no difficulty in upholding the statute against constitutional attack under the Due Process Clause, noting: It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way. 428 U.S. at" }, { "docid": "17562062", "title": "", "text": "cobble together a due process holding from Eastern Enterprises ’ fragmented parts. We have previously held that the rule of Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), under which the opinion of the Justices concurring in the judgment on the “narrowest grounds” is to be regarded as the Court’s holding, does not apply unless the narrowest opinion represents a “common denominator of the Court’s reasoning” and “embodfies] a position implicitly approved by at least five Justices who support the judgment.” King v. Palmer, 950 F.2d 771, 781 (D.C.Cir.1991). Justice Kennedy’s due process analysis clearly does not meet this standard because he alone was willing to invalidate economic legislation on the ground that it violated the Due Process Clause. And, as should be obvious, Justice Kennedy’s due process reasoning can in no sense be thought a logical subset of the plurality’s takings analysis. In short, the government is correct in stating that the only binding aspect of Eastern Enterprises is its specific result — holding the Coal Act unconstitutional as applied to Eastern Enterprises. Thus, our basic inquiry in resolving appellant’s due process challenge remains the same after Eastern Enterprises as it was before: namely, we accord economic legislation a “presumption of constitutionality” that can be overcome only if the challenger establishes that the legislature acted in an arbitrary and irrational way. Usery v. Turner Elkhom Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). The challenged legislation, moreover, is to be upheld if there is any conceivable rational basis supporting it, whether or not the Congress had that particular basis in mind when the legislation was enacted. See FCC v. Beach Communications, 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). Even legislation with a retroactive effect may satisfy due process if the “retroactive application of the legislation is itself justified by a rational legislative purpose.” Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 729-30, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984). We think that the Coal Act, as applied to the Association’s" }, { "docid": "16958623", "title": "", "text": "U.S. 211, 106 S.Ct. 1018, 89 L.Ed.2d 166 (1986), and Concrete Pipe & Prods, of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993), Justice O’Connor noted that those decisions “left open the possibility that legislation might be unconstitutional if it imposes severe retroactive liability on a limited class of parties that could not have anticipated the liability, and the extent of that liability is substantially disproportionate to the parties’ experience.” Id. at 524, 528-29, 118 S.Ct. 2131. The plurality opinion proceeded to analyze the case as a regulatory taking. First, the plurality concluded that the economic impact of the regulation was substantial. Eastern’s cumulative payments under the Act were estimated between $50 and $100 million. Id. at 529, 118 S.Ct. 2131. Next, the plurality reasoned that this liability was not “proportional” to Eastern’s experience with the plans. While Eastern “contributed to the 1947 and 1950 W & R Funds, it ceased its coal mining operations in 1965 and neither participated in negotiations nor agreed to make contributions in connection with the Benefit Plans under the 1974, 1978, or subsequent NBCWA’s.” Id. at 530, 118 S.Ct. 2131. It was only the “latter agreements” that first suggested the industry commitment to the funding of lifetime health benefits for retirees and their family members. Even though EACC continued coal mining through 1987 as a subsidiary of Eastern, Eastern’s liability under the Act bore “no relationship to its ownership of EACC; the Act assign[ed] Eastern responsibility for benefits relating to miners that Eastern itself, not EACC, employed ....” Id. “Although Eastern at one time employed the Combined Fund beneficiaries” assigned under the Coal Act, the “correlation between Eastern and its liability to the Combined Fund” was tenuous, and the amount assessed against Eastern resembled a calculation “made in a vacuum.” Id. at 531, 118 S.Ct. 2131 (citing Connolly, 475 U.S. at 225, 106 S.Ct. 1018). Eastern’s obligations under the Act depended “solely on its roster of employees some 30 to 50 years before the statute’s enactment, without regard to any responsibilities that" }, { "docid": "18572102", "title": "", "text": "applied to Unity, does not violate the Substantive Due Process Clause. This conclusion is compelled by the Supreme Court’s decision in Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, — U.S. —, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (employer withdrawal liability under the Multiemployer Pension Plan Amendments Act (MPPAA), as applied to plaintiff, did not violate Substantive Due Process Clause or Takings Clause). In Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984), and Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 106 S.Ct. 1018, 89 L.Ed.2d 166 (1986), the Supreme Court had previously upheld the MPPAA against constitutional challenges under the substantive component of the Due Process Clause and the Takings Clause. The Concrete Pipe Court held that the employer’s Substantive Due Process challenge must be rejected pursuant to the Court’s decision in Gray, as well as the Court’s decision in Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976) (rejecting Due Process challenge to Title IV of the Federal Coal Mine Health and Safety Act of 1969, which required operators to compensate miners with Black Lung who left employment in the industry before the effective date of the Act, and the survivors of such employees). The Court in Concrete Pipe explained the extremely deferential standard to be applied in Substantive Due Process challenges — the party challenging the legislation must “establish that the legislature has acted in an arbitrary and irrational way.” — U.S. at — - —, 113 S.Ct. at 2287-88. The Court stated: In determining whether the imposition of withdrawal liability is rational, then, the relevant question is not whether a withdrawing employer’s employees have vested benefits, but whether an employer has contributed to the plan’s probable liability by providing employees with service credits. When the withdrawing employer’s liability to the plan is based on the proportion of the plan’s contributions (and coincident service credits) provided by the employer during the employer’s participation in the plan, the imposition of withdrawal" }, { "docid": "13731707", "title": "", "text": "contribute to the UMWA trust fund after its contractual requirement to do so had expired, Blue Diamond created some of the “orphans” who became the responsibility of the remaining contributing operators. These orphaned miners continued to draw upon the funds and contributed to their financial instability. The Turner Elkhom ease is highly instructive here. That case involved a Due Process challenge to the Federal Coal Mine Health and Safety Act of 1969, as amended by the Black Lung Benefits Act of 1972. In that legislation, Congress required coal operators to pay the medical costs of their former employees who were suffering from black lung disease, even though these employees had terminated their work in the industry before the Act was passed and even though the operators had never contracted to pay such compensation. The Supreme Court found that the Black Lung Benefits Act rationally spread the costs of the employees’ disabilities to those who had profited from their labor. The same reasoning can be applied to the facts of this case. Congress has chosen to spread the costs of the Combined Fund’s benefits to those employers who had profited from the labor of UMWA miners and who, at some time in their histories, had contributed to multi-employer welfare benefit funds. B. The Takings Clause Challenge The Takings Clause of the Fifth Amendment prohibits the government from taking property for public use without paying the former owner just compensation. It is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Penn Central Transp. Co. v. New York City, 438 U.S. 104, 123, 98 S.Ct. 2646, 2658, 57 L.Ed.2d 631 (1978). However, there are “a wide variety of contexts ... [in which] government may execute laws or programs that adversely affect recognized economic values.” Id. at 124, 98 S.Ct. at 2659. “[V]ested economic rights are held subject to the Government’s substantial power to regulate for the public good the conditions under which business is carried out and to redistribute the benefits and burdens" }, { "docid": "22798968", "title": "", "text": "v. United States, 444 U. S. 164, 175 (1979) (internal quotation marks omitted). We have identified several factors, however, that have particular significance: “[T]he economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the governmental action.” Ibid.; see also Connolly, supra, at 224-225. B Our analysis in this ease is informed by previous decisions considering the constitutionality of somewhat similar legislative schemes. In Usery v. Turner Elkhorn Mining Co., 428 U. S. 1 (1976), we had occasion to review provisions of the Black Lung Benefits Act of 1972, 30 U. S. C. § 901 et seq., which required coal operators to compensate certain miners and their survivors for death or disability due to black lung disease caused by employment in coal mines. Coal operators challenged the provisions of the Act relating to miners who were no longer employed in the industry, arguing that those provisions violated substantive due process by imposing “an unexpected liability for past, completed acts that were legally proper and, at least in part, unknown to be dangerous at the time.” 428 U. S., at 15. In rejecting the operators’ challenge, we explained that “legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and . . . the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.” Ibid. We observed that stricter limits may apply to Congress’ authority when legislation operates in a retroactive manner, id., at 16-17, but concluded that the assignment of liability for black lung benefits was “justified as a rational measure to spread the costs of the employees’ disabilities to those who have profited from the fruits of their labor,” id., at 18. Several years later, we confronted a due process challenge to the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), 94 Stat. 1208. See Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U. S. 717 (1984). The MPPAA was enacted to supplement ERISA, 29 U. S. C." }, { "docid": "16958622", "title": "", "text": "Security assigned to Eastern the obligation for Combined Fund premiums for over 1,000 retired miners who had worked for the company before 1966, based on Eastern’s status as the pre-1978 signatory operator for whom the miners had worked for the longest period of time. 26 U.S.C. § 9706(a)(3) (eligible beneficiary assigned to signatory operator which employed the coal industry retiree in the coal industry for a longer period of time than any other signatory operator prior to the effective date of the 1978 coal wage agree ment). Eastern’s premium for a 12-month period was $5 million. 1. A plurality of the Supreme Court, led by Justice O’Connor, held that the Coal Act violated the Takings Clause as applied to Eastern. After surveying previous decisions that considered “constitutionality of somewhat similar legislative schemes,” see Usery v. Turner Elkhom Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976), Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984), Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 106 S.Ct. 1018, 89 L.Ed.2d 166 (1986), and Concrete Pipe & Prods, of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993), Justice O’Connor noted that those decisions “left open the possibility that legislation might be unconstitutional if it imposes severe retroactive liability on a limited class of parties that could not have anticipated the liability, and the extent of that liability is substantially disproportionate to the parties’ experience.” Id. at 524, 528-29, 118 S.Ct. 2131. The plurality opinion proceeded to analyze the case as a regulatory taking. First, the plurality concluded that the economic impact of the regulation was substantial. Eastern’s cumulative payments under the Act were estimated between $50 and $100 million. Id. at 529, 118 S.Ct. 2131. Next, the plurality reasoned that this liability was not “proportional” to Eastern’s experience with the plans. While Eastern “contributed to the 1947 and 1950 W & R Funds, it ceased its coal mining operations in 1965 and neither participated in negotiations nor" }, { "docid": "17562079", "title": "", "text": "But the prior cases on which the plurality relied for its takings analysis also suggest that the Due Process Clause imposes some minimal requirement of proportionality between an employer’s actual conduct and its ultimate liability under a multi-employer benefit plan. See Concrete Pipe & Prods. of Calif., Inc. v. Construction Laborers Pension Trust, 508 U.S. 602, 637-39, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993); R.A. Gray, 467 U.S. at 733, 104 S.Ct. 2709. And although the plurality did not reach the question whether the identified lack of proportionality violated due process, that was precisely the ground upon which Justice Kennedy rested his concurrence in the judgment. .We agree with appellant, however, that, in light of the Eastern Enterprises decision, and contrary to the district court's conclusion below, there can be no question that the Association’s members’ Coal Act liability is in fact retroactive given that the Act attaches new legal consequences to an employment relationship completed before its enactment. See Eastern Enters., — U.S. at-, 118 S.Ct. at 2151 (citing Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)). . It is true that the plurality rejected the dissent's conclusion that the participation of the federal government in prior coal agreements, together with statements from industry members and members of Congress, demonstrated an implicit industry-wide promise to fund lifetime benefits. See Eastern Enters., -U.S. at-, 118 S.Ct. at 2152. And it was Justice Stevens in dissent who relied upon the First Circuit's conclusion that, \"[f]or purposes of due process review, Congress’ determination that a commitment was made need not rest upon a legally enforceable promise; it is enough that Congress' conclusions as to the existence and effects of such a commitment are rational.\" Id. at 2160 n. 4 (Stevens, J., dissenting) (quoting Eastern Enters., 110 F.3d 150, 157 (1st Cir.1997)); see also id. at 2165 (Breyer, J., dissenting). However, we think that the plurality and the dissenters were in agreement that reasonable expectations can be formed even in the absence of a binding contractual promise, and disagreed only on the question whether Eastern's" }, { "docid": "22798967", "title": "", "text": "the change,” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 416 (1922). Of course, a party challenging governmental action as an unconstitutional taking bears a substantial burden. See United States v. Sperry Corp., 493 U. S. 52, 60 (1989). Government regulation often “curtails some potential for the use or economic exploitation of private property,” Andrus v. Allard, 444 U. S. 51, 65 (1979), and “not every destruction or injury to property by governmental action has been held to be a ‘taking’ in the constitutional sense,” Armstrong, supra, at 48. In light of that understanding, the process for evaluating a regulation’s constitutionality involves an examination of the “justice and fairness” of the governmental action. See Andrus, 444 U. S., at 65. That inquiry, by its nature, does not lend itself to any set formula, see ibid., and the determination whether “‘justice and fairness’ require that economic injuries caused by public action [must] be compensated by the government, rather than remain disproportionately concentrated on a few persons,” is essentially ad hoc and fact intensive, Kaiser Aetna v. United States, 444 U. S. 164, 175 (1979) (internal quotation marks omitted). We have identified several factors, however, that have particular significance: “[T]he economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the governmental action.” Ibid.; see also Connolly, supra, at 224-225. B Our analysis in this ease is informed by previous decisions considering the constitutionality of somewhat similar legislative schemes. In Usery v. Turner Elkhorn Mining Co., 428 U. S. 1 (1976), we had occasion to review provisions of the Black Lung Benefits Act of 1972, 30 U. S. C. § 901 et seq., which required coal operators to compensate certain miners and their survivors for death or disability due to black lung disease caused by employment in coal mines. Coal operators challenged the provisions of the Act relating to miners who were no longer employed in the industry, arguing that those provisions violated substantive due process by imposing “an unexpected liability for past, completed acts that were legally proper and, at least in part, unknown" }, { "docid": "23560312", "title": "", "text": "the retroactive application of the legislation is itself justified by a rational legislative purpose.... Provided that the retroactive application of a statute is supported by a legitimate legislative purpose furthered by rational means, judgments about the wisdom of such legislation remain within the exclusive province of the legislative and executive branches.’ ” United States v. Northeastern Pharmaceutical & Chemical Co. (“NEPACCO ”), 810 F.2d 726, 733 (8th Cir.1986), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987), quoting Pension Ben. Guaranty Gory. v. R.A. Gray & Co., 467 U.S. 717, 429-430, 104 S.Ct. 2709, 2719, 81 L.Ed.2d 601 (1984); Dickerson, 640 F.Supp. at 451 (“The courts have consistently ruled that CERCLA’s language and legislative history overrule the presumption against retroactive application of statutes, and have rejected similar constitutional attacks upon the Act.”); United States v. Ottati & Goss, Inc., 630 F.Supp. 1361 (D.N.H.1985), aff'd in part and vacated in part, 900 F.2d 429 (1st Cir.1990); Conservation Chemical, 619 F.Supp. at 213-214. ICI makes its own arguments on the retroactivity of CERCLA: “[T]he [Government has determined that ICI should be strictly liable not only for its own prior acts, but also for the prior lawful acts of other parties who were unrelated and even unknown to ICI. See ICI 12 & 25. Such a scheme is the antithesis of the requirement that the law be ‘known, or at least knowable’ to those who are subject to its terms.” ICI Memo at 17-18 (citation omitted) (emphasis original). The seminal Supreme Court decision on the constitutionality of retroactive legislation is Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). Turner Elkhorn upheld the retroactive provisions of the Federal Coal Mine Health and Safety Act of 1969, as amended by the Black Lung Benefits Act of 1972, which required coal mine operators to pay former employees disabled by black lung disease, even though they had ceased working in the mines before the act was passed. The Court held that “our cases are clear that legislation readjusting rights and burdens is not unlawful solely because" }, { "docid": "22389653", "title": "", "text": "and repose. Carlton, 512 U.S. at 31, 114 S.Ct. 2018; Pension Benefit Guaranty Corp., 467 U.S. at 731, 104 S.Ct. 2709; Usery, 428 U.S. at 16-17, 96 S.Ct. 2882; see also Carlton, 512 U.S. at 37-38, 114 S.Ct. 2018 (O’Connor, J. concurring) (“The governmental interest in revising the tax laws must at some point give way to the taxpayer’s interest in finality and repose.... In every case in which we have upheld a retroactive federal tax statute against a due process challenge ■... the law applied retroactively for only a relatively short period prior to enactment.”). The Court has also upheld retroactive statutes against due process challenges when they operate retroactively to spread the costs of a current social problem. In Usery, for example, the Court considered a due process challenge to a statute that required coal mine operators to compensate former employees disabled by pneu-moconiosis, even if those employers no longer worked in the coal industry when the statute was enacted. The Court upheld the statute because “the imposition of liability for the effects of disabilities bred in the past is justified as a rational measure to spread the costs of the employees’ disabilities to those who have profited from the fruits of their labor — the operators and the coal consumers.” Usery, 428 U.S. at 18, 96 S.Ct. 2882. See also Pension Benefit Guaranty Corp., 467 U.S. at 730-31, 104 S.Ct. 2709. The Court provided additional guidance in this area in Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998). There, a plurality of the Court noted that “[o]ur decisions ... have left open the possibility that legislation might be unconstitutional if it imposes severe retroactive liability on a limited class of parties that could not have anticipated the liability, and the extent of that liability is substantially disproportionate to the parties’ experience.” Id. at 528-29, 118 S.Ct. 2131. Justice Kennedy, concurring, emphasized that the due process' right against retroactive legislation reflects the Court’s “recognition that retroactive lawmaking is a particular concern for the courts because of the legislative ‘tempt[ation] to use retroactive" }, { "docid": "16958621", "title": "", "text": "against ‘signatory coal operators,’ ie., coal operators that signed any [National Bituminous Coal Wage Agreement] [NBCWA] or any other agreement requiring contributions to the 1950 or 1974 Benefit Plans.” Id. Any signatory operator who “ ‘conducts or derives revenue from any business activity, whether or not in the coal industry,’ ” could be liable for those premiums. Id. Where a signatory was no longer involved in any business activity, premiums could be levied against “related persons,” including successors in interest and businesses or corporations under common control. Id. Eastern Enterprises conducted “extensive coal mining operations” until 1965, when it transferred its coal-related operations to a subsidiary, Eastern Associated Coal Corp. (EACC). Eastern retained its stock interest in EACC through a subsidiary corporation, Coal Properties Corp. (CPC), until 1987, when Eastern sold its interest in CPC to Peabody Holding Company. When the Coal Act was enacted, Eastern was no longer involved in the coal industry, but it was “in business” within the meaning of the Coal Act. Pursuant to the Coal Act, the Commissioner of Social Security assigned to Eastern the obligation for Combined Fund premiums for over 1,000 retired miners who had worked for the company before 1966, based on Eastern’s status as the pre-1978 signatory operator for whom the miners had worked for the longest period of time. 26 U.S.C. § 9706(a)(3) (eligible beneficiary assigned to signatory operator which employed the coal industry retiree in the coal industry for a longer period of time than any other signatory operator prior to the effective date of the 1978 coal wage agree ment). Eastern’s premium for a 12-month period was $5 million. 1. A plurality of the Supreme Court, led by Justice O’Connor, held that the Coal Act violated the Takings Clause as applied to Eastern. After surveying previous decisions that considered “constitutionality of somewhat similar legislative schemes,” see Usery v. Turner Elkhom Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976), Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984), Connolly v. Pension Benefit Guar. Corp., 475" }, { "docid": "17562078", "title": "", "text": "prior to Eastern Enterprises that the three other plaintiffs with whom the appellant's case was consolidated below each asserted a takings claim; appellant alone rested its constitutional case exclusively on the Due Process Clause. . That is not to say that Eastern Enterprises is irrelevant to this case. We discuss its relevance below. . Nor do we find it significant, for due process purposes, that the legislative history does not mention the Association’s participation in the benefit plans or the creation of the Construction Trust as a cause of the financial difficulties of the 1950 and 1974 Plans. After all, the government can create a rational explanation ex post to support a statute attacked on due process grounds. That being so, we can hardly require a showing that Congress specifically identified the Association’s members as a cause of the problem before it passed the Coal Act in order to sustain the Act under rational basis review. . It is true that the plurality focused on the lack of proportionality as part of its takings analysis. But the prior cases on which the plurality relied for its takings analysis also suggest that the Due Process Clause imposes some minimal requirement of proportionality between an employer’s actual conduct and its ultimate liability under a multi-employer benefit plan. See Concrete Pipe & Prods. of Calif., Inc. v. Construction Laborers Pension Trust, 508 U.S. 602, 637-39, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993); R.A. Gray, 467 U.S. at 733, 104 S.Ct. 2709. And although the plurality did not reach the question whether the identified lack of proportionality violated due process, that was precisely the ground upon which Justice Kennedy rested his concurrence in the judgment. .We agree with appellant, however, that, in light of the Eastern Enterprises decision, and contrary to the district court's conclusion below, there can be no question that the Association’s members’ Coal Act liability is in fact retroactive given that the Act attaches new legal consequences to an employment relationship completed before its enactment. See Eastern Enters., — U.S. at-, 118 S.Ct. at 2151 (citing Landgraf v. USI Film Prods.," }, { "docid": "19183976", "title": "", "text": "S.Ct. at 2892-93. In Turner Elkhom, the Supreme Court upheld the Black Lung Act of 1972, 30 U.S.C. § 901, against a challenge that it violated due process because it applied retroactively. The Act required coal mine operators to compensate past and present miners, as well as minors’ survivors, for total disability or death due to black lung disease. Notably, miners who left employment before the effective date of the Act were eligible for benefits. The mine operators argued that “to impose liability upon them for former employees' disabilities is impermissibly to charge them with an unexpected liability for past, completed acts that were legally proper and, at least, in part, unknown to be dangerous at the time.” 428 U.S. at 15, 96 S.Ct. at 2892. Rejecting the operators’ challenge to the statute, the Court noted that It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way. Id. These principles, the Court elaborated, apply to retrospective, as well as prospective, legislation: [O ]ur cases are clear that legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations. This is true even though the effect of the legislation is to impose a new duty or liability on past acts. Id. at 16, 96 S.Ct. at 2893 (citations omitted). The Court concluded that Congress had acted rationally in enacting the Black Lung Act: [T]he imposition of liability for the effects of disabilities bred in the past is justified as a rational measure to spread the costs of the employees’ disabilities to those who have profited from the fruits of their labor — the operators and the coal consumers. Id. at 18, 96 S.Ct. at 2893. To the extent that CERCLA is considered retroactive, it clearly satisfies the Turner Elkhom standard. Like the statute at issue in Turner Elkhom, CERCLA was enacted in response to the threat" } ]

[ { "docid": "22550271", "title": "", "text": "or necessary than expenses resulting from the defense of a damage suit based on malpractice, or fraud, or breach of fiduciary duty. Yet in these latter cases legal expenses have been held deductible without regard to the success of the defense. The Bureau of Internal Revenue, the Board of Tax \\ Appeals, and the federal courts have from time to time, ! however, narrowed the generally accepted meaning of. the : language used in § 23 (a) in order that tax deduction i consequences might not frustrate sharply defined national/ or state policies proscribing particular types of conduct. A review of the situations which have been held to belong in this category would serve no useful purpose for each case should depend upon its peculiar circumstances. A few examples will suffice to illustrate the principle involved. Where a taxpayer has violated a federal or a state statute and incurred a fine or penalty he has not been permitted a tax deduction for its payment. Similarly, one who has incurred expenses for certain types of lobbying and political pressure activities with a view to influencing federal legislation has been denied a deduction. And a taxpayer who has made payments to an influential party precinct captain in order to obtain a state printing contract has not been allowed to deduct their amount from gross income. It has never been thought, however, that the mere fact that an expenditure bears a remote relation to an illegal act makes it nondeductible. The language of § 23 (a) contains no express reference to the lawful or unlawful character of the business expenses which are declared to be deductible. And the brief of the government in the instant case expressly disclaims any contention that the purpose of tax laws is to penalize illegal business by taxing gross instead of net income. Cf. United States v. Sullivan, 274 U. S. 259. . If the respondent’s litigation expenses are to be denied deduction, it must be because allowance of the deduction ¡(would frustrate the sharply defined policies of 39 U. S. C. §§ 259 and 732 which authorize" } ]

[ { "docid": "730664", "title": "", "text": "of Int.Rev.Code of 1939; and the only deduction allowable thereunder. We cannot conclude the Tax Court was clearly erroneous in its decision, and its decision is therefore affirmed. . Int.Rev.Code of 1939, as amended by Sec. 121(a), Revenue Act of 1942, c. 619, 56 Stat. 798: “§ 23. Deductions from gross income. “In computing net income there shall be allowed as deductions: “(a) Expenses. (1) Trade or business expenses. “(A) In General. All the ordinary and' necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered * * 26 U.S.C. § 23(a). . “Sec. 89.23 (a)-6. Compensation for personal services, (a) There may be included among the ordinary and necessary expenses paid or incurred in carrying on any trade or business a reasonable allowance for salaries or other compensation for personal services actually rendered. The test of deductibility in the case of compensation payments is whether they are reasonable and are in fact payments purely for services. “(b) The test set forth in paragraph (a) of this section and its practical application may be further stated and illustrated as follows: “(1) Any amount paid in the form of compensation, but not in fact as the purchase price of services, is not deductible. An ostensible salary paid by a corporation may be a distribution of a dividend on stock. This is likely to occur in the ease of a corporation having few shareholders, practically all of whom draw salaries. If in such a case the salaries are in excess of those ordinarily paid for similar services, and the excessive pay-monts correspond or boar a close relationship to the stockholdings of the officers or employees, it would seem likely that the salaries are not paid wholly for services rendered, but that the excessive payments are a distribution of earnings upon the stock. An ostensible salary may be in part payment for property. This may occur, for example, where a partnership sells out to a corporation, the former partners agreeing to continue in" }, { "docid": "23683434", "title": "", "text": "HOLMES, Circuit Judge. This petition for review involves a deficiency in federal income and excess profits taxes for the years 1941, 1942, and 1943. The question presented is whether certain amounts paid by the taxpayers’ transferor during the period in question to its president and principal stockholder as part of rent for a building used by the corporation constituted in reality a distribution of profits. Rental payments, to be allowed as deductions from gross income, must be those required to be made as a condition to the continued use of the property. Section 23(a) (1) (A) of the Internal Revenue Code and its concomitant regulations allow, as a deduction from gross income, ordinary and necessary business expenses, including amounts paid as rentals or other payments required to be made as a condition to the continued use or possession of property to which the taxpayer has not taken and is not taking title, or in which he has no equity. The statute contains no express limitation with respect to the reasonableness of the amounts as a condition to deduction, but rentals or other payments for the use of property which are excessive in amount, taking into consideration all the facts of the particular case, do not constitute ordinary and necessary business expenses, or payments required to be made as a condition to the continued use of the property. The Tax Court was not bound to accept the form of this transaction between a corporation and its principal stockholder at face value, but was required to make a careful scrutiny to determine how much of the amount, if any, was actually dividends distributed in the guise of rent. The statute does not permit the deduction of an amount which is in no sense a legitimate business expense. The substance of the transaction is for the Tax Court to determine upon the appraisal of all the facts, and its decision must be sustained if there is a rational basis for its conclusion. We think the Tax Court was justified in finding that the premises under consideration here were greatly over-valued as to rental," }, { "docid": "8893124", "title": "", "text": "handle automotive equipment. The daughter took a position as clerk in a drug store, which she held through most of 1944 and 1945, and thereafter she married. The son continued to be away from Kansas City during all of the time that is here involved, as a university student, with an intervening period of military service. We think that the Tax Court was entitled to appraise the corporation’s payment of this two cents more per gallon, to the daughter-and-son partnership, for the same gasoline which it theretofore had been buying at wholesale price from the distributor and which it was in a position to have continued doing, as amounting simply to a syphoning off of corporate earnings in stockholder family-relationship and to corporate tax-advantage, and as constituting on the part of Byers, in his position of control and to the extent of his stock holding, a diversion from himself to his children of dividend income — the funds having in the circumstances been equivalently so paid out- by the corporation and equivalently so received by him. To sustain the deficiency against the corporation, discussion of only one legal ground is sufficient. The Tax Court’s refusal to recognize the two-cent payment as having diminished the corporation’s earnings amounted to a rejection of this portion of the price paid for gasoline as a deduction for “ordinary and necessary expenses” in carrying on the business, under section 23(a)(1)(A) of the Internal Revenue 'Code, 26 U.S.C.A. § 23(a)(1)(A). Clearly, it seems to us, the circumstances were possessed of sufficient logical probative force to support the inference that payment of the two-cent excess was made for family and not business reasons and that it was in the situation neither commercially natural nor commercially realistic. The test of any. deduction made as ordinary and necessary expenses in carrying on a trade or business is its normalcy and soundness as business expenditure, in both nature and amount, by general commercial standards, in practical application to the specific situation. Cf. Deputy v. Du Pont, 308 U.S. 488, 495, 60 S.Ct. 363, 84 L.Ed. 416; Welch v. Helvering, 290" }, { "docid": "8646989", "title": "", "text": "expenses it will not become necessary to consider whether they are allowable deductions because they constitute compensation for personal services actually rendered, and in any event we will not be obliged to determine their reasonableness, for that is concededly within the exclusive province of the Tax Court and it has given no consideration to it in view of its decision that the payments were neither ordinary and necessary expenses nor compensation. The taxpayer concedes that deductions under § 23 are permissible only by legislative grace and that it must show that the payments fall under statutory provisions authorizing their allowance. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 54 S.Ct. 788, 78 L.Ed. 1348. That the payments sought to be deducted were expenses, should reasonably be clear. The taxpayer paid out its money for annuity premiums and for the creation of a trust. Under no circumstances could it get any of it back. Our question then is not whether these expenditures constituted expenses but whether they were ordinary and necessary as that phrase is used in the Act. The Commissioner’s reliance is upon Welch v. Helvering, 290 U.S. 111, 54 S.Ct. 8, 78 L.Ed. 112, and Deputy, Administratrix v. Du Pont, 308 U.S. 488, 60 S.Ct. 363, 84 L.Ed. 416. In the first, the taxpayer sought to deduct payments to creditors of a company with which he had been connected, although the corporate debts to them had been discharged by an adjudication in bankruptcy. His purpose was to create good will for a new venture and the decision was that such expenditures were in the nature of capital outlays and not deductible as expenses. In the second, the taxpayer sought to aid the plan of a corporation in which he was a stockholder by selling stock short to executives and having the corporation lend them the purchase price. He sought to deduct payments made to the lender of the shares to compensate him for dividends received by the taxpayer on the borrowed shares. These expenditures were held not to be ordinary and necessary expenses of the taxpayer’s business. Not" }, { "docid": "7242264", "title": "", "text": "use of the club facilities. In substance, the club distributed the timber profits to its members in the form of reduced membership dues and/or fees. However, the issue raised by the parties to this proceeding does not concern the existence of a constructive dividend but instead is restricted to a determination of whether the expenses incurred and paid by petitioner in its recreational activities, to the extent they exceed the income derived therefrom, are deductible under section 162(a). In support of his contention that petitioner’s activities relating to maintenance and operation of a fishing and hunting preserve and a pleasure resort do not constitute the carrying on of a trade or business within the intendment of section 162, respondent argues that to constitute a trade or business within the meaning of section 162(a), an activity must be carried on with a motive to profit and that motive must be the primary or dominant purpose. Petitioner, on the other hand, contends that, notwithstanding the absence of a profit motive, as a corporate taxpayer it is entitled to deduct all expenses incident to the ordinary and normal conduct of its corporate affairs as a social club to the extent such expenses are reasonable in amount. Petitioner argues on brief that the term “trade or business” must be applied in light of the corporate “business” of the particular taxpayer. Accordingly, argues petitioner, items of expenditure which are ordinary and necessary to the achievement of the objectives of one corporation, and therefore deductible by that corporation, may not be deductible by another corporation with different corporate objectives. Petitioner’s argument equates a corporation’s trade or business with its objectives. Petitioner argues that where, as in the present case, expenditures are made in accordance with the corporate objectives, they are paid or incurred “in carrying on any trade or business” within the intendment of section 162(a), notwithstanding that the corporate objectives do not include a profit motive. Petitioner attempts to distinguish some of the cases cited by respondent on the ground that the issues therein involved the deduction of personal expenditures incurred by profit-motivated corporations. Petitioner" }, { "docid": "10390763", "title": "", "text": "other mines and concessions by the subsidiaries, and the liquidation of Colombian Placers, S. A., and surrender of the shares of International’s five subsidiaries which held many of the adverse claims. Assuming, arguendo, that if paid by the subsidiaries the fee is of such character as to be an expense deductible by them, we are of opinion that it is not so available to petitioner. The subsidiaries are entities distinct from the parent, and, although their economic advantages redound to the parents’ benefit, the Supreme Court has meticulously distinguished between the two in an application of section 23 (a). In Interstate Transit Lines v. Commissioner, 319 U. S. 590, it said: * * * That subsection limits permitted deductions to those paid or incurred “in carrying on any trade or business.” * * * It was not the business of the taxpayer to pay the costs of operating an intrastate bus line in California. The carriage of intrastate passengers [by the taxpayer’s subsidiary] did not increase the business of the taxpayer. The profit earned on their carriage increased the taxpayer’s profit but so would any other profitable activity wholly disconnected from the taxpayer’s own business. * * * To the same effect are Deputy v. du Pont, 308 U. S. 488, and Missouri-Kansas Pipe Line Co. v. Commissioner (C. C. A., 3d Cir.), 148 Fed. (2d) 460. And in denying a parent the right to deduct interest of 3 per cent paid by it on a loan to its subsidiary, which loan it had guaranteed, this Court said in Eskimo Pie Corporation, 4 T. C. 669; affd. (C. C. A., 3d Cir.), 153 Fed. (2d) 301: * * * Payments made by a stockholder of a corporation for the purpose of protecting his interest therein must be regarded as additional cost of his stock and such sums may not be deducted as ordinary and necessary expenses. W. F. Bavinger, 22 B. T. A. 1239; Michigan Central Railroad Co., 79 Fed. (2d) 427, affirming 28 B. T. A. 437, 444, on this point. * * * But the assumption that the" }, { "docid": "18183208", "title": "", "text": "business of Stages in the tax year in question was both interstate and intrastate. For petitioner to engage in intrastate business in California was, on the findings, illegal. Thus, the businesses of the two companies were distinct. Cf. Edwards v. Chile Copper Co., 270 U. S. 452, 454, 456; Texas-Empire Pipe Line Co. v. Commissioner, 127 F. 2d 220. Even assuming that the interstate business of Stages could be the business of the petitioner, it follows that at most only that part of the deficit attributable to Stages’ interstate business could be an expense of petitioner’s business and petitioner could not conceivably deduct as a business expense the cost of Stages’ intrastate business. There was no showing below as to the allocation of the deductions sought as between Stages’ intrastate and interstate business. There is thus no record requiring a further examination of petitioner’s argument since in the absence of affirmative proof to the contrary we must assume that the entire deficiency was found correctly by the Commissioner and that the deficit is attributable to Stages’ intrastate business. It is no answer to this defect of proof that petitioner was obligated by contract to assume Stages’ deficit. The mere fact that the expense was incurred under contractual obligation does not of course make it the equivalent of a rightful deduction under § 23 (a). That subsection limits permitted deductions to those paid or incurred “in carrying on any trade or business.” The origin and nature, and not the legal form, of the expense sought to be deducted determines the applicability of the words of § 23 (a). Deputy v. du Pont, supra, 494. It was not the business of the taxpayer to pay the costs of operating an intrastate bus line in California. The carriage of intrastate passengers did not increase the business of the taxpayer. The profit earned on their carriage increased the taxpayer’s profit but so would any other profitable activity wholly disconnected from the taxpayer’s own business. As the Circuit Court pointed out, the assumption of the deficit was not dependent upon a corresponding service or benefit" }, { "docid": "916636", "title": "", "text": "State some of the payments (in the event that their license tax is not equal to or more than, .the, bank share tax would have been) does not turn the payments into taxes. The payments are simply a source of income to the insurance company stockholders out of which a tax might be paid. Nor does the fact that a tax is the only obligation that may be imposed upon a national bank by a state convert these payments into taxes. See 12 U.S. C.A. § 548 (conferring authority upon the states to tax national bank shares). The required payments are merely incidental to the taxation of the nonexempt stockholders: the Virginia statute requiring the payments directs the division of the fund out of which the bank share tax and dividends are paid to assure that the tax imposed upon the nonexempt stockholders will be borne entirely by them. Reversed and remanded for recalculation of the judgment in accordance with this opinion. Reversed and remanded. . § 164. Taxes (a) General rule. — Except as otherwise provided in this section, the following taxes shall be allowed as a deduction for the taxable year within which paid or accrued: (1) State and local, and foreign, real property taxes. (2) State and local personal property taxes. * * * * * . (e) Taxes of shareholder paid by corporation. — Where a corporation pays a tax imposed on a shareholder on his interest as a shareholder, and where the shareholder does not reimburse the corporation, then— (1) the deduction allowed by subsection (a) shall be allowed to the corporation ; and (2) no deduction shall be allowed the shareholder for such tax. . § 162. Trade or business expenses (a) In general. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * *. . § 301. Distributions of property (a) In general. — Except as otherwise provided in this chapter, a distribution of property (as defined in section 317(a)) made by a" }, { "docid": "8893125", "title": "", "text": "him. To sustain the deficiency against the corporation, discussion of only one legal ground is sufficient. The Tax Court’s refusal to recognize the two-cent payment as having diminished the corporation’s earnings amounted to a rejection of this portion of the price paid for gasoline as a deduction for “ordinary and necessary expenses” in carrying on the business, under section 23(a)(1)(A) of the Internal Revenue 'Code, 26 U.S.C.A. § 23(a)(1)(A). Clearly, it seems to us, the circumstances were possessed of sufficient logical probative force to support the inference that payment of the two-cent excess was made for family and not business reasons and that it was in the situation neither commercially natural nor commercially realistic. The test of any. deduction made as ordinary and necessary expenses in carrying on a trade or business is its normalcy and soundness as business expenditure, in both nature and amount, by general commercial standards, in practical application to the specific situation. Cf. Deputy v. Du Pont, 308 U.S. 488, 495, 60 S.Ct. 363, 84 L.Ed. 416; Welch v. Helvering, 290 U.S. 111, 113, 114, 54 S.Ct. 8, 78 L.Ed. 212; Amtorg Trading Corp. v. Commissioner, 2 Cir., 65 F.2d 583, 586. As to the deficiency against Byers, the circumstances also plainly seem to us to have sufficient logical probative force to support the view that the formation of the daughter-and-son partnership and the buying of gasoline from it at a two-cent excess over the corporation’s previous source constituted a plan on Byers’ part to divert earnings of the corporation from himself as major stockholder to his children as family members; that this syphoning off of corporate earnings, on each occasion that the excess was paid, amounted in the situation to dividend distributions at these various times; and that such payments therefore had the nature and effect of a receiving of dividend income by Byers, to the extent of his stock holding. Viewing the making of the payments as equivalent to dividend distributions, from the inherent nature of the funds indicated by their use, and from the control involved, in the dealings and disbursements of which" }, { "docid": "1953557", "title": "", "text": "debt from Motor) to $2 million and what he gave in exchange was a right to 50% of the trademark rights throughout Europe — a term that was disabling the Receiver from being able to sell all of the trademark rights to a single purchaser. The increase — $1,530,000 [-] is thus a cost of the sale to IMMI. Id. at 3-5 (citations and footnotes omitted). Notwithstanding this partial abatement, a dispute remains over the claimed deduction. 3. What Constitutes an “Ordinary and Necessary Expense” Section 162 of the Internal Revenue Code states that “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business” are deductible. 26 U.S.C. § 162(a). Reasonable “‘expenditures made to protect or to promote a taxpayer’s business, and which do not result in the acquisition of a capital asset, are deductible’ as ordinary and necessary expenses of transacting business.” Ray Crowder v. C.I.R., 19 T.C. 329, 334, 1952 WL 85 (1952). Only expenses that are “an integral part of a business” qualify as ordinary and necessary expenses. Allen v. C.I.R., 283 F.2d 785, 790 (7th Cir.1960). In general, expenditures made on behalf of another’s business are not ordinary and necessary expenses of the taxpayer’s business. Deputy v. duPont, 308 U.S. 488, 60 S.Ct. 363, 84 L.Ed. 416 (1940). “Payments made by a stockholder of a corporation for the purpose of protecting his interest therein must be regarded as additional cost of his stock and such sums may not be deducted as ordinary and necessary expenses.” Eskimo Pie Corp. v. C.I.R., 4 T.C. 669, 676, 1945 WL 220 (1945). When one corporation acquires another, the payment of the previous owner’s obligations is considered a capital expenditure and not an ordinary and necessary business expense. Ill. Tool Works, Inc. and Subsidiaries v. C.I.R., 117 T.C. 39, 46, 2001 WL 863544 (2001). Only in certain, limited instances are advances to another corporation deductible. For instance, a taxpayer’s payments to another corporation in the process of dissolution have been held to be the taxpayer’s business expenses, and not an investment" }, { "docid": "8907344", "title": "", "text": "HOLMES, Circuit Judge. This appeal involves income taxes for the year 1946, and is taken from a decision of the Tax Court entered June 29, 1951. 16 T.C. 1452. The question presented is whether said court’s findings of reasonable allowances for compensation for personal services for the taxpayer’s president and sole stockholder are clearly erroneous. The applicable statute and regulation are Section 23(a) (1) (A) of the Internal Revenue Code, as amended by Section 121 of the Revenue Act of 1942, c. 619, 56 Stat. 798; and Sec. 29.23 of Treasury Regulations III, promulgated under said code. Under said statute, the petitioner is allowed as deductions from its gross income, during tire taxable year, all the ordinary and necessary expenses paid or incurred in carrying on its business, includinga reasonable allowance for salaries or other compensation for personal services actually rendered. Under the just-cited regulation,, the test of deductibility in the case of compensation payments is whether or not they are reasonable and are in fact payments purely for personal services. Any amount paid in the form of compensation, but not such in fact, is not deductible. An ostensible salary paid by a corporation may be a distribution of a dividend on stock. This is likely to occur in the case of a corporation having few shareholders, practically all of whom draw salaries. Bonuses to employees will constitute allowable deductions from gross income when such payments are made in good faith, and as additional compensation for services actually rendered, provided such payments, when added to-stipulated salaries, do- not exceed a reasonable compensation for the services rendered. The deduction in this case was for the •sum of $27,655.73, which represented a •salary of $7200 and a bonus of $20,455.73, paid pursuant to an employment contract ■entered into by and between the stockhold•er-president and the petitioner, a solely •owned corporation. The Tax Court found •that the Commissioner’s disallowance in ;part was right, redetermined the deficiency, and fixed the sum of $14,643 as a reasonable •deduction. The basis of the holding was •that, while ordinary deductions for bonus payments may be all right," }, { "docid": "1953558", "title": "", "text": "qualify as ordinary and necessary expenses. Allen v. C.I.R., 283 F.2d 785, 790 (7th Cir.1960). In general, expenditures made on behalf of another’s business are not ordinary and necessary expenses of the taxpayer’s business. Deputy v. duPont, 308 U.S. 488, 60 S.Ct. 363, 84 L.Ed. 416 (1940). “Payments made by a stockholder of a corporation for the purpose of protecting his interest therein must be regarded as additional cost of his stock and such sums may not be deducted as ordinary and necessary expenses.” Eskimo Pie Corp. v. C.I.R., 4 T.C. 669, 676, 1945 WL 220 (1945). When one corporation acquires another, the payment of the previous owner’s obligations is considered a capital expenditure and not an ordinary and necessary business expense. Ill. Tool Works, Inc. and Subsidiaries v. C.I.R., 117 T.C. 39, 46, 2001 WL 863544 (2001). Only in certain, limited instances are advances to another corporation deductible. For instance, a taxpayer’s payments to another corporation in the process of dissolution have been held to be the taxpayer’s business expenses, and not an investment in the other corporation, where the payments were necessary to protect the reputation and credit standing of the taxpayer’s own business. Allen v. C.I.R., 283 F.2d 785, 790-91 (7th Cir.1960). 4. The Court Order Does Not Make the Motor Claims Expense an Ordinary and Necessary Business Expense The Receiver argues simply that because the Colorado District Court ordered IMMI to pay Motor’s debts, the payments are ordinary and necessary business expenses. Docket No. 65 at 3. This argument is unpersuasive. The fact that a court has ordered payments does not automatically render the payments tax deductible. “Mere obligation to pay, whether by court order or contracts, does not obviate the need to measure the expenditures against the requirements of section 162 of the Internal Revenue Code.” Dolese v. U.S., 605 F.2d 1146, 1151 (10th Cir.1979). The Receiver has not introduced credible evidence that would remove the Motor Claims Expenses from the ordinary rule that a taxpayer’s payments on behalf of another are not the taxpayer’s own ordinary and necessary business expenses. In Allen v. C.I.R.," }, { "docid": "11184890", "title": "", "text": "partnership not permitted any other taxpayer. It is more reasonable to conclude that a guaranteed payment to a partner should be treated the same as if it had been made to a nón-partner. Thus, it would be deductible to a partnership if it was a necessary and ordinary business expense pursuant to Section 162(a), irrespective of whether made to a partner or a non-partner. Correspondingly, if a payment made to a partner would be a capital expenditure under Section 263(a) if made to a non-partner, then such payment should not receive different treatment because made to a partner. This is to say that it should be capitalized. Willis, Partnership Taxation (2d ed. 1976), Vol. I, § 20.04; Rev.Rul. 75-214, 1975 Int.Rev.Bul. 9. See Herbert Shainberg, 33 T.C. 241, 249-251 (1959); A. Rhett duPont, 19 T.C. 377, 381 (1952). Having rejected Taxpayers’ argument regarding deductibility of a guaranteed payment to a partner regardless of the nature of the payment, we turn to consideration of the nature of the payment in question here. To be deductible as a business expense, it must usually be shown that an expenditure was part of the cost of operating the business for the year in which such expenditure was made. When, however, an expenditure is made for the acquisition of an asset the useful life of which will extend beyond the year in which cost is incurred, such expenditure is considered as a capital item, and is not generally deductible as a business expense. We have found no cases directly analogous to the fact situation presented here, but the courts have of course addressed themselves many times to the issue of whether an expenditure was an ordinary business expense or was a capital expenditure. In Woodward v. C. I. R., 1970, 397 U.S. 572, 90 S.Ct. 1302, 25 L.Ed.2d 577, the petitioner-taxpayer wanted to deduct, as an ordinary business expense, expenses incurred in the appraisal of minority stockholders’ stock in connection with the majority stockholders’ acquisition of such stock. The Supreme Court took note of the long recognized position “that costs incurred in the acquisition or" }, { "docid": "13042399", "title": "", "text": "as an expense of his business as licensor of the Perlok process and in his income tax return charged such expense against royalties received. He treated the payment as a deductible expense of his personal licensing business. The petitioner sent his $30,000 check directly to Willey. Ho entries relating to such payment were ever made in Textile’s books, and the other stockholders of Textiles were never consulted about the payment. The petitioner has never sought reimbursement from Textiles for the payment, and he did not intend that the payment to Willey should be a loan to Textiles. The petitioner had made many loans to Textiles and its predecessor, the J. L. Lohrke Co., but with the exception of the two $10,000 loans in January and February of 1962, the loans have been used by Textiles to offset normal operating deficits. The petitioner had never loaned Textiles more than $12,000 at any one time, and all of the petitioner’s loans were carried on Textile’s books as loans from the petitioner. The other stockholders of Textiles were advised of these loans. OPINION This case presents us with the question of whether one person can deduct the expenses of another person. The obligation to pay for the defective shipment of top was primarily that of Textiles, and the respondent argues that for that reason, the payment was not an ordinary and necessary expense of the trade or business of the petitioner and is not deductible by him. On the other hand, the petitioner contends that he made such payment in order to protect and further the trade or business of licensing the use of the Perlok patent and that accordingly, the payment is an ordinary and necessary expense of that business and is deductible by him. Both parties have treated the petitioner’s patent licensing activity as constituting a trade or business. A business expense, to be deductible under section 162 of the Internal Bevenue Code of 1954, must be both ordinary and necessary. Generally, payment by one taxpayer of the obligation of another taxpayer is not ordinary and necessary. In Welch v. Helvering," }, { "docid": "18183210", "title": "", "text": "rendered to the petitioner by Stages in connection with petitioner’s business. 130 F. 2d 136, 139. In view of these conclusions, it is unnecessary to characterize the payment by petitioner as a capital expenditure or otherwise, or to decide whether if the record were complete petitioner and Stages should be treated as a taxable entity for the claimed purpose. Cf. Moline Properties v. Commissioner, ante, p. 436. -Affirmed. 49 Stat. 1648: “Sec. 23. Deductions from Gross Income. “In computing net income there shall be allowed as deductions: “(a) Expenses. — All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business . . .” Cf. Moline Properties v. Commissioner, ante, p. 436; Higgins v. Smith, 308 U. S. 473, 477, n. 8-10. Mr. Justice Jackson, dissenting: This taxpayer operated a bus system between Chicago and Los Angeles. It could not pick up intrastate passengers in California, as it did elsewhere, because the State denied foreign corporations permission to do so. In-order to obtain local traffic to help carry the cost of operating the interstate buses, taxpayer organized a wholly-owned and dominated California subsidiary. This contented the local authorities, and it was granted permission to carry local business. It took over buses arriving at the state line, operated them in California, thus performing a part of the taxpayer’s agreements of through carriage and benefiting from local traffic to reduce the cost. It was a common-sense business arrangement, for the purpose of making its business profitable. The taxpayer made a contract with the subsidiary, by which the subsidiary undertook the service; the parent company became entitled to the profits and assumed the losses. The taxpayer agreed to reimburse the subsidiary for any operating deficit. This, too, was a common-sense business arrangement. To pay its wholly-owned subsidiary more would be pointless, for it would only come back. To pay it less would result in its bankruptcy to the injury of creditors. So the taxpayer agreed that the operating deficits should be the measure of its contractual obligation to the subsidiary. There is no suggestion" }, { "docid": "14101931", "title": "", "text": "more than $225,000. Thus, Delta, the lessor, recovered almost double its original investment of about $131,000 in less than three years. Petitioner contends that the Tax Court erred in reducing the amount claimed by it as rental. As has been observed, the stockholders of petitioner were also stockholders of the Delta Realty Company. Three of the four stockholders of petitioner, owning more than 50% of its stock, also owned 666% out of the 1,000 shares issued by Delta and consequently controlled Delta. The rest of the stock of petitioner was owned by John J. Graham, while the remainder of the stock of Delta was owned by Graham’s wife. The statute involved, so far as here pertinent, reads as follows: “§ 23. Deductions from gross income. “In computing net income there shall be allowed as deductions: “(a) Expenses. “(1) Trade or business expenses. “(A) In General. All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; * * * and rentals or other payments required to be made as a condition to the continued use or possession, for purposes of the trade or business, of property to which the taxpayer has not taken or is not taking title or in which he has no equity.” In view of the fact that petitioner’s stockholders owned more than a majority of the stock of the Delta Realty Company, petitioner, in contracting with it, in effect was contracting with itself under the name of Delta Realty Company. Under the facts of this case the parties could not be said to be dealing at arm’s length and no presumption of the deductibility of the entire amount paid as rentals under the lease attaches. In Brown Printing Co. v. Commissioner, 5 Cir., 255 F.2d 436, 438, it is said: “It is entirely appropriate, therefore, for the Commissioner to inquire into payments in the nature of rent and disallow such part as may be excessive in amount, and if such •determination of disallowance" }, { "docid": "13042400", "title": "", "text": "advised of these loans. OPINION This case presents us with the question of whether one person can deduct the expenses of another person. The obligation to pay for the defective shipment of top was primarily that of Textiles, and the respondent argues that for that reason, the payment was not an ordinary and necessary expense of the trade or business of the petitioner and is not deductible by him. On the other hand, the petitioner contends that he made such payment in order to protect and further the trade or business of licensing the use of the Perlok patent and that accordingly, the payment is an ordinary and necessary expense of that business and is deductible by him. Both parties have treated the petitioner’s patent licensing activity as constituting a trade or business. A business expense, to be deductible under section 162 of the Internal Bevenue Code of 1954, must be both ordinary and necessary. Generally, payment by one taxpayer of the obligation of another taxpayer is not ordinary and necessary. In Welch v. Helvering, 290 U.S. 111, 114 (1933), the Supreme Court stated that “Men do at times pay the debts of others without legal obligation or the lighter obligation imposed by the usages of trade or by neighborly amenities, but they do not do so ordinarily.” In that case, the taxpayer was secretary of a corporation which had gone through bankruptcy. In order to reestablish his relations with customers whom he had known when acting for the bankrupt corporation and to solidify his credit and standing, the taxpayer undertook to pay the debts of the corporation. The Court denied a deduction for these payments, saying that they were in the nature of capital expenditures to develop his new business. The general rule was reiterated by the Supreme Court in Deputy v. du Pont, 308 U.S. 488 (1940). In that case, a substantial shareholder of du Pont borrowed from other shareholders du Pont stock which he sold to some key employees of du Pont to enable them to acquire stock in the corporation. He sought a deduction for the" }, { "docid": "18183209", "title": "", "text": "Stages’ intrastate business. It is no answer to this defect of proof that petitioner was obligated by contract to assume Stages’ deficit. The mere fact that the expense was incurred under contractual obligation does not of course make it the equivalent of a rightful deduction under § 23 (a). That subsection limits permitted deductions to those paid or incurred “in carrying on any trade or business.” The origin and nature, and not the legal form, of the expense sought to be deducted determines the applicability of the words of § 23 (a). Deputy v. du Pont, supra, 494. It was not the business of the taxpayer to pay the costs of operating an intrastate bus line in California. The carriage of intrastate passengers did not increase the business of the taxpayer. The profit earned on their carriage increased the taxpayer’s profit but so would any other profitable activity wholly disconnected from the taxpayer’s own business. As the Circuit Court pointed out, the assumption of the deficit was not dependent upon a corresponding service or benefit rendered to the petitioner by Stages in connection with petitioner’s business. 130 F. 2d 136, 139. In view of these conclusions, it is unnecessary to characterize the payment by petitioner as a capital expenditure or otherwise, or to decide whether if the record were complete petitioner and Stages should be treated as a taxable entity for the claimed purpose. Cf. Moline Properties v. Commissioner, ante, p. 436. -Affirmed. 49 Stat. 1648: “Sec. 23. Deductions from Gross Income. “In computing net income there shall be allowed as deductions: “(a) Expenses. — All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business . . .” Cf. Moline Properties v. Commissioner, ante, p. 436; Higgins v. Smith, 308 U. S. 473, 477, n. 8-10. Mr. Justice Jackson, dissenting: This taxpayer operated a bus system between Chicago and Los Angeles. It could not pick up intrastate passengers in California, as it did elsewhere, because the State denied foreign corporations permission to do so. In-order to obtain local traffic to" }, { "docid": "14333365", "title": "", "text": "If the amount in question is considered as a constructive dividend, the entire amount is includible in gross income under Section 115(a) which provides the “the term dividend * * * means any distribution made by a corporation to its shareholders, whether in money or in ■other property * * * out of the earnings or profits of the taxable year * As the Tax Court stated: “* * * the application of a corporation’s funds for the payment of the personal expenses of a stockholder, where there is no intention ■of repayment, constitutes the equivalent of a corporate distribution, it is equally proper to hold that the disputed payment represents an informal and constructive dividend to Alex.” The corporation here had a surplus of $1,575,037 on September 30, 1952, and there can, therefore, be no question of the availability of funds for dividends. Further, if petitioner considers the amount as reimbursed travel expense, the entire amount is includible in gross income under Section 39.23(a)-2(c), Treasury Regulations 118. Reimbursed travel expenses are includible in an employee’s income and his actual expenses attributable to the conduct of the business are deductible. The wife’s expenses here were personal, were paid for by the corporation and are includible in gross income, and since they were not attributable to the conduct of the business, they are not deductible. Hamlin’s Estate v. Commissioner of Internal Revenue, 6 Cir., 188 F.2d 364. Petitioner argues that it was necessary for the Tax Court to determine the precise nature of this item of income because if it decided that the amount was compensation then more than half of the total expenses of $6,408.02 is an allowable business deduction to him on account of travel. Petitioners’ argument is that it is cheaper for two to travel than for a single person and proof was offered that the saving is approximately 30%. In the present case, however, both petitioners took the trip and caused the expenses and it was conceded that the trip was both a business trip and petitioners’ wedding trip. Petitioner Alex Silverman was not only engaged in" }, { "docid": "7253254", "title": "", "text": "the petitioner corporation was formed to succeed the partnership. The partners became the stockholders, but at some subsequent date Monfrey became the sole stockholder and its president and general manager. The petitioner, as successor, continued to make payments to Heusinger at the rate of 3 cents per case of beer sold. In its income tax return for the taxable period July 16,1953, to October 31,1953, the partnership Falstaff Beer of San Antonio reported payments of $3,850.38 made to Heusinger under the contract of July 22, 1953, and this amount was deducted as an ordinary and necessary business expense. In its income tax returns for the taxable period October 29,1953, to July 31,1954, the fiscal year ended July 31, 1955, and the fiscal year ended July 31, 1956, the petitioner reported such payments denominated overriding commissions, in the respective amounts of $16,656.63, $25,057.95, and $17,226.11, and deducted them as ordinary and necessary business expenses. In its return for the fiscal year ended July 31,1957, the petitioner did not report or deduct any payments made as overriding commissions. In the notices of deficiency the respondent disallowed these claimed deductions on the ground that they did not constitute ordinary and necessary business expenses. In the notice of deficiency for the year ended July 31, 1956, the respondent further stated that the amount in question constituted a cost of acquiring a business and a capital asset. The payments made by the petitioner in the years in question, pursuant to the contract of July 22, 1953, were not ordinary and necessary expenses paid or incurred in the conduct of the petitioner’s business. OPINION. The question presented is whether the payments made in the years in question are deductible as ordinary and necessary expenses paid or incurred in those years in carrying on any trade or business, within the intendment of section 23 (a) (1) (A) of the Internal Revenue Code of 1939 and section 162 (a) of the Internal Revenue Code of 1954. The payments were made in satisfaction of the obligation undertaken in the contract of July 22, 1953, to pay $65,000 at the" } ]

[ { "docid": "19716882", "title": "", "text": "points pursuant to § 4Al.l(d) of the Sentencing Guidelines. Section 4Al.l(d) provides that in calculating criminal history points the court should “[a]dd 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” U.S.S.G. § 4Al.l(d) (emphasis in original). In this case, the district court added 2 points to Akinyemi’s crim inal history for illegally reentering the United States while on supervised release for his previous conviction for importing heroin. Akinyemi asserts that he was not on supervised release when he reentered the United States because it terminated when he was deported. We review this question of law de novo. Although this is a question of first impression in this circuit, we are guided by the recent decision from the Fifth Circuit in United States v. Brown, 54 F.3d 284 (5th Cir.1995). Brown was arrested for conspiring to import marijuana in August 1993. After serving a sentence for an earlier conviction, Brown’s term of supervised release began on October 1, 1990. He was soon deported, but later illegally reentered the United States. After reentry he was convicted of drug conspiracy. Because the new drug offense occurred during the period of supervised release, he was given two additional criminal history points, thus increasing his sentencing range. Brown argued that he was not on supervised release because when he was deported on October 31, 1990, his supervised release was extinguished. The Fifth Circuit disagreed, noting first it was “unaware of any court which has held that deportation extinguishes a term of supervised release.” Id. at 237. The court then examined 18 U.S.C. § 3583(d) and 8 U.S.C. § 1252(h) and concluded that both statutes indicate that deportation does not extinguish a sentence of supervised release. Id. at 237-38. . For instance, 18 U.S.C. § 3583(d) provides: If an alien defendant is subject to deportation, the court may provide, as a condition of supervised release, that he be deported and remain outside the United States, and may order that he be delivered to a duly authorized immigration official" } ]

[ { "docid": "19716883", "title": "", "text": "1990. He was soon deported, but later illegally reentered the United States. After reentry he was convicted of drug conspiracy. Because the new drug offense occurred during the period of supervised release, he was given two additional criminal history points, thus increasing his sentencing range. Brown argued that he was not on supervised release because when he was deported on October 31, 1990, his supervised release was extinguished. The Fifth Circuit disagreed, noting first it was “unaware of any court which has held that deportation extinguishes a term of supervised release.” Id. at 237. The court then examined 18 U.S.C. § 3583(d) and 8 U.S.C. § 1252(h) and concluded that both statutes indicate that deportation does not extinguish a sentence of supervised release. Id. at 237-38. . For instance, 18 U.S.C. § 3583(d) provides: If an alien defendant is subject to deportation, the court may provide, as a condition of supervised release, that he be deported and remain outside the United States, and may order that he be delivered to a duly authorized immigration official for deportation. And 8 U.S.C. § 1252(h) provides: An alien sentenced to imprisonment shall not be deported until such imprisonment has been terminated by the release of the alien from confinement. Parole, supervised release, probation, or possibility of rearrest or further confinement in respect of the same offense shall not be ground for deferral of deportation. We agree with the Fifth Circuit that “[a] plain reading of these two sections supports the government’s position that deportation does not extinguish supervised release.” Brown, 54 F.3d at 238. Both sections assume that deportation is consistent with the continuation of “supervised release,” indicating Congress did not intend deportation to terminate a sentence of supervised release. The probation office’s position that “[a]n offender reentering the country prior to expiration of supervision should be supervised,” further supports the conclusion that deportation does not extinguish a term of supervised release. Brown, 54 F.3d at 239 (quoting Probation Manual, Guide To -Judiciary Policies and Procedures IV, § 18). The implication from the plain language of 18 U.S.C. § 3583 and 8 U.S.C." }, { "docid": "3044918", "title": "", "text": "of applying U.S.S.G. § 4A1.1(d). See United States v. Williams, 369 F.3d 250, 252-53 (3d Cir.2004); United States v. Ramirez-Sanchez, 338 F.3d 977, 980 (9th Cir.2003); Akinyemi 108 F.3d at 779; Brown, 54 F.3d at 238-39; see also United States v. Carrasco-Mateo, 389 F.3d 239, 247 (1st Cir.2004) (state parole is not extinguished by deportation for purposes of U.S.S.G. § 4A1.1(d)). For this reason, we conclude that the district court did not err in assessing Roccisano a two-point criminal history enhancement under U.S.S.G. § 4A1.1(d). As far as Roccisano’s reliance on the United States Sentencing Commission’s recent amendment to § 5D1.1 of the Guidelines — which states that sentencing courts “ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment,” U.S.S.G. § 5D1.1(c)—this provision is inapplicable here because Roccisano’s term of supervised release was a statutorily mandated component of his sentence for narcotics trafficking. See 21 U.S.C. §§ 841(b)(1)(A) and 960(b)(1)(H) (“any sentence under this subparagraph shall ... impose a term of supervised release of at least 5 years in addition to such term of imprisonment....”) (emphasis added). And, in any event, that amendment to the Guidelines did not go into effect until November 1, 2011, well after Roccisano was sentenced in this action. See U.S.S.G. § 5D1.1 (2011). Roccisano next argues that the district court’s sentence is procedurally unreasonable because it was based, in part, on the Government’s unproven insinuations that Roccisano’s illegal reentry was motivated by his participation in separate criminal activity. This is unconvincing. In the absence of record evidence suggesting otherwise, we presume that sentencing judges faithfully discharge their duties at sentencing. See Fernandez, 443 F.3d at 30. The district court explicitly stated that it would “put aside” the Government’s earlier representations regarding Roccisano’s participation in other criminal activity, Appellant’s App. 66, and Roccisano points to nothing in the district court’s remarks at sentencing that suggests it did not do so. Finally, Roccisano contends that the district court’s sentence was substantively" }, { "docid": "3044915", "title": "", "text": "range (unless omission of the calculation is justified), makes a mistake in its Guidelines calculation, ... treats the Guidelines as mandatory[,] ... does not consider the § 3553(a) factors, or rests its sentence on a clearly erroneous finding of fact.” Id. at 190 (internal citations omitted). In assessing the substantive reasonableness of a sentence, we set aside a district court’s sentence “only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions.” Id. at 189 (internal quotation marks omitted). “We recognize that in the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.2006). Vacatur for substantive unreasonableness is warranted where “the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir.2009). We turn first to Roccisano’s contention that the district court erred in calculating the applicable sentencing range under the Guidelines because it assigned two criminal history points for Roccisano’s having committed his offense while under a term of supervised release. See U.S.S.G. § 4A1.1(d) (Two criminal history points should be assigned “if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status”). Roccisano argues that this was error in that — because he was deported after completing his prison term for narcotics trafficking in 2006—he was not under active supervision at the time of his illegal reentry. While we have not yet had occasion to address this specific issue, we have held, in highly analogous circumstances, that a defendant-alien’s deportation does not terminate a “special parole term” imposed under 21 U.S.C. § 841(b)(1). See United States v. Cuero-Flores, 276 F.3d 113, 117-18 (2d Cir.2002). Section 4A1.1(d) of the Guidelines defines a “criminal justice sentence” as including both “parole” and “supervised release,” and Roccisano offers no basis on which the deportation consequences of the two categories of sentences should differ." }, { "docid": "3044917", "title": "", "text": "Indeed, in Cuero-Flores, we expressly relied on. the Fifth Circuit’s decision in United States v. Brown, 54 F.3d 234 (5th Cir.1995) and the Seventh Circuit’s decision in United States v. Akinyemi 108 F.3d 777 (7th Cir.1997), in which both courts held that deportation does not terminate a defendant-alien’s term of supervised release. In support, the Fifth Circuit in Brown reasoned that: Congress would not require that a defendant be deported despite a term of supervised release and at the same time allow for supervised release to be conditioned on the defendant not reentering the United States illegally. If Congress intended for deportation to terminate this sentence, it could have specifically provided for such to occur. Cuero-Flores, 276 F.3d at 117 (quoting Brown, 54 F.3d at 238); see also id. (“We agree with the Fifth and Seventh Circuits’ analyses in Brown and Akinyemi....”). Accordingly, we take this occasion to formally join all of our sister Circuits who have addressed this issue in holding that a term of supervised release does not terminate upon deportation for purposes of applying U.S.S.G. § 4A1.1(d). See United States v. Williams, 369 F.3d 250, 252-53 (3d Cir.2004); United States v. Ramirez-Sanchez, 338 F.3d 977, 980 (9th Cir.2003); Akinyemi 108 F.3d at 779; Brown, 54 F.3d at 238-39; see also United States v. Carrasco-Mateo, 389 F.3d 239, 247 (1st Cir.2004) (state parole is not extinguished by deportation for purposes of U.S.S.G. § 4A1.1(d)). For this reason, we conclude that the district court did not err in assessing Roccisano a two-point criminal history enhancement under U.S.S.G. § 4A1.1(d). As far as Roccisano’s reliance on the United States Sentencing Commission’s recent amendment to § 5D1.1 of the Guidelines — which states that sentencing courts “ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment,” U.S.S.G. § 5D1.1(c)—this provision is inapplicable here because Roccisano’s term of supervised release was a statutorily mandated component of his sentence for narcotics trafficking. See 21 U.S.C. §§ 841(b)(1)(A) and" }, { "docid": "22149523", "title": "", "text": "the district court erred in assigning two criminal history points to Cruz-Gramajo under § 4Al.l(d), we need not reach the issue. Cruz-Gramajo had seven criminal history points assigned based on his prior sentences; the district court’s addition of the two § 4Al.l(d) points brought his total criminal history points to nine. Both seven and nine points result in a criminal history category of IV, see U.S.S.G. Ch.5, Pt. A, resulting in the same Guideline range even assuming error. Therefore, if any error was committed, which we do not decide, it was harmless. See United States v. Rutledge, 28 F.3d 998; 1003-1004 & n. 7 (9th Cir.1994). We hold that the district court did not err,’ much less plainly err, in its assignment of two criminal history points under § 4Al.l(d) to Aguilar-Rodriguez. In Ayala, we noted that “[t]o avoid being ‘found in’ the United States, a deported alien can either not re-enter the United States, or, if he has already re-entered the United States, he can leave.” 35 F.3d at 425. Here, Aguilar-Rodriguez committed two separate DUI offenses before he was “found” in the United States. Aguilar-Rodriguez’s first DUI conviction was received in August 2005, after his unlawful reentry. In October 2005, his probation was revoked and a bench warrant was issued. According to § 4Al.l(d), cmt., n. 4, “[a] defendant who commits the instant offense while a violation warrant from a prior sentence is outstanding (e.g., a probation, parole, or supervised release violation warrant) shall be deemed to be under a criminal justice sentence for the ■ purposes of this provision.... ” Thus, while under a criminal justice sentence for the first DUI, Aguilar-Rodriguez did not leave the country to avoid being “found.” The district court did not plainly err in assigning the § 4Al.l(d) points to Aguilar-Rodriguez. AFFIRMED. . The statute provides in relevant part: (a) In general Subject to subsection (b) of this section, any alien who— (1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attempts" }, { "docid": "19228696", "title": "", "text": "from United States, and thus defendant’s subsequent commission of another offense, illegal re-entry after deportation, prior to expiration of term of supervised release, violated condition of supervised release that defendant commit no new offenses); United States v. CueroFlores, 276 F.3d 113, 118 (2d Cir.2002) (holding that parole survives deportation); United States v. Akinyemi, 108 F.3d 777, 779 (7th Cir.1997) (stating that Congress did not intend for deportation to extinguish supervised release); United States v. Brown, 54 F.3d 234, 238 (5th Cir.1995) (holding that because Congress did not specifically state that deportation terminates supervised release, it remains intact even after an alien’s deportation). We find these authorities persuasive. Accordingly, we hold that the district court committed no error, plain or otherwise, in finding that Barrera was on probation and assessing two criminal history points under § 4Al.l(d). B. Safety-Valve Relief Barrera also argues that the Supreme Court in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), granted district courts the discretion to treat the safety-valve provision of 18 U.S.C. § 3553(f) as advisory. Barrera contends that the district court erroneously assessed three criminal history points under the Guidelines based on his overstated criminal history, thus making him ineligible for the safety valve. Barrera asserts that the district court could have considered its assessment of criminal history points as advisory and used its discretion to reduce his criminal history score to meet the requirements of the safety valve, and set his sentence below the mandatory minimum 120 months. We disagree and affirm. Safety-valve relief allows the district court to disregard an applicable statutory minimum if certain requirements are met. 18 U.S.C. § 3553(f). At issue here is the requirement that the defendant not have more than “1 criminal history point, as determined under the sentencing guidelines.” 18 U.S.C. § 3553(f)(1). Barrera essentially argues that Booker and its progeny made this provision of the Guidelines merely advisory because criminal history is determined under the Guidelines. In Booker, the Supreme Court held that the Guidelines violated the Sixth Amendment and rendered them “effectively advisory.” 543 U.S. at 244," }, { "docid": "3044916", "title": "", "text": "under the Guidelines because it assigned two criminal history points for Roccisano’s having committed his offense while under a term of supervised release. See U.S.S.G. § 4A1.1(d) (Two criminal history points should be assigned “if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status”). Roccisano argues that this was error in that — because he was deported after completing his prison term for narcotics trafficking in 2006—he was not under active supervision at the time of his illegal reentry. While we have not yet had occasion to address this specific issue, we have held, in highly analogous circumstances, that a defendant-alien’s deportation does not terminate a “special parole term” imposed under 21 U.S.C. § 841(b)(1). See United States v. Cuero-Flores, 276 F.3d 113, 117-18 (2d Cir.2002). Section 4A1.1(d) of the Guidelines defines a “criminal justice sentence” as including both “parole” and “supervised release,” and Roccisano offers no basis on which the deportation consequences of the two categories of sentences should differ. Indeed, in Cuero-Flores, we expressly relied on. the Fifth Circuit’s decision in United States v. Brown, 54 F.3d 234 (5th Cir.1995) and the Seventh Circuit’s decision in United States v. Akinyemi 108 F.3d 777 (7th Cir.1997), in which both courts held that deportation does not terminate a defendant-alien’s term of supervised release. In support, the Fifth Circuit in Brown reasoned that: Congress would not require that a defendant be deported despite a term of supervised release and at the same time allow for supervised release to be conditioned on the defendant not reentering the United States illegally. If Congress intended for deportation to terminate this sentence, it could have specifically provided for such to occur. Cuero-Flores, 276 F.3d at 117 (quoting Brown, 54 F.3d at 238); see also id. (“We agree with the Fifth and Seventh Circuits’ analyses in Brown and Akinyemi....”). Accordingly, we take this occasion to formally join all of our sister Circuits who have addressed this issue in holding that a term of supervised release does not terminate upon deportation for purposes" }, { "docid": "19228693", "title": "", "text": "valve under § 3553(f). A. Criminal History Calculation Barrera asserts that the district court erroneously added two points to his criminal history score because he committed the instant offense while on probation for his Oregon misdemeanor assault offense. See U.S.S.G. § 4Al.l(d). But Barrera failed to object below to the factual findings of the PSR. Without objection, the district court accepted the PSR’s recommendation and added two points to Barrera’s criminal history score. Accordingly, Barrera “has waived this issue and may not raise it before this court unless he can demonstrate plain error resulting in a miscarriage of justice.” United States v. Flores, 959 F.2d 83, 88 (8th Cir.1992) (internal quotations and citations omitted). The Guidelines allow a district court to award two additional criminal history points “if the defendant committed the instant offense while under any criminal justice sentence, including probation.” U.S.S.G. § 4Al.l(d). Barrera argues that once he was deported to Mexico, he was no longer on probation for purposes of § 4Al.l(d). Specifically, Barrera asserts that because Oregon no longer exercised authority over him, his deportation terminated his probation. This argument is without merit. Although this is an issue of first impression in our circuit, other circuits have expressly held that deportation does not automatically extinguish penal supervision such as parole and supervised release. See, e.g., United States v. Carrasco-Mateo, 389 F.3d 239, 247 (1st Cir.2004). We believe the same principle applies to probation and hold that Barrera committed the instant offense while under a criminal justice sentence despite his intervening deportation. Federal law, not state law, governs whether a defendant is under “any criminal justice sentence.” See Carrasco-Mateo, 389 F.3d at 247. In Carrasco-Mateo, the appellant argued that because he was deported, he was no longer under New York parole. Id. at 246. The First Circuit concluded that whether a defendant is on parole is a question of federal law. Id. at 246-47. The appellant asserted that because New York no longer exercised custodial or supervisory authority over him, his term of parole had ended. Id. at 247. The court relied on immigration law in rejecting" }, { "docid": "22145663", "title": "", "text": "purposes, only the fact that he was “found” by immigration authorities while serving a sentence in the TDCJ. This result is in accord with the Ninth Circuit’s holding that § 1326 applied to a deported alien whose presence in a California state prison was discovered by an INS agent. United States v. Ortiz-Villegas, 49 F.3d 1435 (9th Cir.1995). Section 4 A1.1(d) provides that two points should be added to the criminal history category “if the defendant committed the instant offense while under any criminal justice system sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” Section 4A1.1(d) applies “if the defendant committed any part of the instant offense (i.e., any relevant conduct) while under any criminal justice sentence.” § 4A1.1, comment, (n.4). Thus, the § 4Al.l(d) two-point enhancement for purposes of criminal history calculation is appropriate where a continuing offense begins before the offense for which the defendant is under a criminal justice sentence because “[a] continuing offense, by its very nature, does not terminate until the date of the indictment or the voluntary termination of the illegal activity.” United States v. Maxim, 55 F.3d 394, 397 (8th Cir.1995). Santana pleaded guilty to the charge that “on or about June 7, 1994 ... [he], an alien previously arrested and deported, was found unlawfully present in the United States” in violation of 8 U.S.C. § 1326. On that date, Santana was imprisoned in the TDCJ-ID. Because a “found in” violation is a continuing violation until the date the alien is discovered by immigration authorities, Santana committed all or part of that violation on the date he was discovered while imprisoned on the state offense. Therefore, the district court did not err in applying § 4A1.1(d). Santana further argues that § 5G1.3(a) is inapplicable because he was not serving a term of imprisonment when he crossed the border. The sentencing court has discretion to impose a concurrent or consecutive sentence on a defendant who is already subject to an undischarged term of imprisonment. 18 U.S.C. § 3584(a). United States v. Hernandez, 64 F.3d 179, 182 (5th Cir.1995). In exercising" }, { "docid": "19228694", "title": "", "text": "over him, his deportation terminated his probation. This argument is without merit. Although this is an issue of first impression in our circuit, other circuits have expressly held that deportation does not automatically extinguish penal supervision such as parole and supervised release. See, e.g., United States v. Carrasco-Mateo, 389 F.3d 239, 247 (1st Cir.2004). We believe the same principle applies to probation and hold that Barrera committed the instant offense while under a criminal justice sentence despite his intervening deportation. Federal law, not state law, governs whether a defendant is under “any criminal justice sentence.” See Carrasco-Mateo, 389 F.3d at 247. In Carrasco-Mateo, the appellant argued that because he was deported, he was no longer under New York parole. Id. at 246. The First Circuit concluded that whether a defendant is on parole is a question of federal law. Id. at 246-47. The appellant asserted that because New York no longer exercised custodial or supervisory authority over him, his term of parole had ended. Id. at 247. The court relied on immigration law in rejecting this argument, stating that “Congress directed the Attorney General that a deportation action should proceed apace notwithstanding an alien’s parole status ‘or possibility of arrest or further imprisonment.’ ” Id. (quoting 8 U.S.C. § 1231(a)(4)(A)). The court determined that § 1231(a)(4)(A) implicitly endorsed the proposition that “deportation leaves an existing term of parole intact” because “an alien may be deported and later face incarceration for violating his parole.” Id. Therefore, the court held “that, under federal law, deportation does not automatically extinguish an existing term of parole.” Id. Just as in Carrasco-Mateo, the Oregon court in the instant case did not lose authority over Barrera merely because he was deported. Id. This decision is in accord with other circuit courts that have addressed similar issues. See United States v. Phillips, 413 F.3d 1288, 1292 (11th Cir.2005) (holding that deportation did not cut short appellant’s parole term regardless of appellant’s subjective beliefs); United States v. Williams, 369 F.3d 250, 252-53 (3d Cir.2004) (holding that term of supervised release was not automatically terminated when defendant was deported" }, { "docid": "19228695", "title": "", "text": "this argument, stating that “Congress directed the Attorney General that a deportation action should proceed apace notwithstanding an alien’s parole status ‘or possibility of arrest or further imprisonment.’ ” Id. (quoting 8 U.S.C. § 1231(a)(4)(A)). The court determined that § 1231(a)(4)(A) implicitly endorsed the proposition that “deportation leaves an existing term of parole intact” because “an alien may be deported and later face incarceration for violating his parole.” Id. Therefore, the court held “that, under federal law, deportation does not automatically extinguish an existing term of parole.” Id. Just as in Carrasco-Mateo, the Oregon court in the instant case did not lose authority over Barrera merely because he was deported. Id. This decision is in accord with other circuit courts that have addressed similar issues. See United States v. Phillips, 413 F.3d 1288, 1292 (11th Cir.2005) (holding that deportation did not cut short appellant’s parole term regardless of appellant’s subjective beliefs); United States v. Williams, 369 F.3d 250, 252-53 (3d Cir.2004) (holding that term of supervised release was not automatically terminated when defendant was deported from United States, and thus defendant’s subsequent commission of another offense, illegal re-entry after deportation, prior to expiration of term of supervised release, violated condition of supervised release that defendant commit no new offenses); United States v. CueroFlores, 276 F.3d 113, 118 (2d Cir.2002) (holding that parole survives deportation); United States v. Akinyemi, 108 F.3d 777, 779 (7th Cir.1997) (stating that Congress did not intend for deportation to extinguish supervised release); United States v. Brown, 54 F.3d 234, 238 (5th Cir.1995) (holding that because Congress did not specifically state that deportation terminates supervised release, it remains intact even after an alien’s deportation). We find these authorities persuasive. Accordingly, we hold that the district court committed no error, plain or otherwise, in finding that Barrera was on probation and assessing two criminal history points under § 4Al.l(d). B. Safety-Valve Relief Barrera also argues that the Supreme Court in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), granted district courts the discretion to treat the safety-valve provision of 18 U.S.C. §" }, { "docid": "3622183", "title": "", "text": "F.3d 942, 945 (9th Cir.2001), and its findings of fact for clear error, see United States v. Howard, 894 F.2d 1085, 1087 (9th Cir.1990). Garcia argues that the district court erred in adding two criminal history points under U.S.S.G. § 4Al.l(d) and in adding one criminal history point under U.S.S.G. § 4Al.l(e). We address each of these arguments in turn. A U.S.S.G. § 4Al.l(d) provides: “Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” (Emphases added.) There is no question that Garcia was “under [a] criminal justice sentence” (parole) on April 20, 2007, the day on which he violated his parole a second time and was returned to the CDC for the third time. And there is no question that Garcia was not on parole (and therefore not “under [a] criminal justice sentence”) on April 2, 2009, the day of his most recent arrest by the LAPD. Thus, our task is to determine on which of these two dates Garcia “committed the instant offense”—if April 20, 2007, then U.S.S.G. § 4Al.l(d) applies; if April 2, 2009, it does not apply. This inquiry implicates the unique nature of Garcia’s “instant offense.” The “instant offense” is Garcia’s conviction under a federal statute punishing a previously deported alien who “is at any time found in[ ] the United States” without the permission of the Attorney General. 8 U.S.C. § 1326(a)(2). “We repeatedly have held that the crime of being found in the United States after deportation is a continuing offense which continues so long as the alien remains in the country. That is, the offense commences with the illegal entry, but is not completed until discovery.” Reyes-Pacheco, 248 F.3d at 946 (emphasis added) (quotation marks and citation omitted). Thus, if Garcia has been continuously in the country since April 20, 2007, then he “committed the instant offense” on that date, and thus committed this offense “while under any criminal justice sentence, including ... parole.” U.S.S.G. § 4Al.l(d). In the district court, the government bore the" }, { "docid": "23494254", "title": "", "text": "of enterprise but did reduce sentence for minor participation). III. The District Court increased defendant’s offense level by two points under U.S.S.G. § 4Al.l(d) for being under a criminal justice sentence at the time he was involved in the conspiracy. Defendant was convicted of possession of marijuana in violation of Kentucky law on December 16, 1991, whereby he was given a sentence of thirty days imprisonment conditionally discharged for two years. This sentence was in effect at the time of the instant offense. Defendant argues that a conditionally discharged sentence is a not criminal justice sentence within the meaning of § 4Al.l(d) which provides: Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release or escape status. Defendant also contends that a custodial or supervisory component is needed for a sentence to qualify as a “criminal justice sentence” and that conditional discharge is unsupervised. Issues involving the interpretation of the Sentencing Guidelines are legal questions which we review de novo. United States v. Smith, 39 F.3d 119, 122 (6th Cir.1994). Application note 4 to § 4Al.l(d) provides guidance as to what the Sentencing Commission intended to be classified as a “criminal justice sentence:” For purposes of [§ 4Al.l(d)] a “criminal justice sentence” means a sentence countable under § 4A1.2 (Definitions and Instructions for Computing Criminal History) having a custodial or supervisory component, although active supervision is not required for this item to apply. For example, a term of unsupervised probation would be included; but a sentence to pay a fine, by itself, would not be included. In United States v. Lloyd, 43 F.3d 1183 (8th Cir.1994), the Eighth Circuit was required to determine whether an Illinois sentence of conditional discharge should be included under § 4Al.l(d). The court noted that § 4Al.l(d) included both sentences of supervised and unsupervised probation. Id. at 1187. The eourt held that under Illinois law, conditional discharge was “the functional equivalent of ‘unsupervised probation’,” id. at 1188, and thus was included under § dAl.Rd). See also United States v. Caputo, 978" }, { "docid": "22473886", "title": "", "text": "procedures applicable to revoking supervised release, which among other diminished rights only require proof by a preponderance of the evidence, as well as the potential of a lengthier sentence. See 18 U.S.C. § 3583(e)(3); Lane v. Williams, 455 U.S. 624, 631, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982); United States v. Hinson, 429 F.3d 114, 118 (5th Cir.2005). This fact alone gives Heredia-Holguin a concrete injury. Moreover, other violations of supervised release terms that also constitute standalone crimes are analyzed on the merits, rather than seen as nonjusticiable. See United States v. Asuncion-Pimental, 290 F.3d 91, 94-95 (2d Cir.2002) (possession of a firearm by a felon); United States v. Morey, 120 F.3d 142, 143 (8th Cir.1997) (same). In opposition, the Government urges us to follow the approach of other circuits that hold that a defendant’s deportation renders moot the defendant’s appeal of his sentence. See, e.g., United States v. Mercurris, 192 F.3d 290, 293-95 (2d Cir.1999); United States v. Vera-Flores, 496 F.3d 1177, 1182 (10th Cir.2007). These cases all predate the amendments to the Sentencing Guidelines set forth above and, therefore, do not address the' deterrence issue. They rely upon the premise that the supervised release terms have no effect on the defendant where he is no longer in the United States. See, e.g., Vera-Flores, 496 F.3d at 1181 (“[The defendant’s] liberty is in no way affected by any sentencing error allegedly committed by the district court because [the defendant’s] deportation has eliminated all practical consequences associated with serving a term of supervised release.”). But even in Mexico, Heredia-Holguin is still subject to at least some of the conditions imposed. See Campos-Serrano, 404 U.S. at 294 n.2, 92 S.Ct. 471; United States v. Brown, 54 F.3d 234, 238 (5th Cir.1995) (“[D]eportation does not extinguish a term of supervised release.”). If he violates these conditions, he is subject to imprisonment. 18 U.S.C. § 3583(e)(3); see also Campos-Serrano, 404 U.S. at 294 n. 2, 92 S.Ct. 471. Accordingly, Heredia-Holguin has a personal stake in the outcome because the terms of supervised release still apply to him. This court, therefore, could grant Heredia-Hol-guin" }, { "docid": "19716886", "title": "", "text": "terminated upon his deportation. See, e.g., United States v. Londono, 100 F.3d 236, 241-42 (2d Cir.1996) (citing Brown and concluding that “[i]t may well be that the district court’s sentence of supervised release was subverted by the order of immediate deportation, but it stands in the record nevertheless.”). Alrinyemi responds that once he was deported he was no longer “supervised” so he could no longer be under a sentence of supervised release. Obviously while Akinye-mi was in Nigeria he was “out of sight-out of mind” and could not be supervised. But once he reentered, even illegally, the period of supervision (if not the physical monitoring) was still in existence. There is no authority for Akinyemi’s claim that deportation automatically terminates his court-imposed sentence. No statute or guideline provides that supervised release is terminated if the criminal is left unsupervised. Therefore, we join the Fifth Circuit and conclude that deportation does not terminate a sentence of supervised release. Brown, 54 F.3d 234; see also Londono, 100 F.3d at 241-42 (agreeing that a defendant who was deported could be resen-tenced within the period of supervised release if he reentered the United States). Perhaps it would be advisable to include as a condition of supervised release that if deported, the defendant cannot reenter. This seems obvious since to reenter is a crime in itself, but that crime will be subject to enhancement if it occurs during the period of supervised release. In any event, the district court properly added two points to Akinye-mi’s criminal history pursuant to § 4Al.l(d). For these reasons,- we AffiRM. . When he was deported, the INS informed Aki-nyemi that if he wanted to return to the United States within five years after his deportation, he must obtain the permission of the United States Attorney General. . 8 U.S.C. § 1326 provides: (a) Subject to subsection (b) of this section, any alien who— (1) has been arrested and deported or excluded and deported, and thereafter (2) enters, attempts-to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside" }, { "docid": "22145662", "title": "", "text": "extend the definition of the offense to include those situations where the alien is the only one who knows the precise date of his surreptitious entry and knows that he has violated the law in reentering the country after he has been arrested and deported. See Gomez, 38 F.3d at 1035. Additionally, this interpretation gives effect to the entire statutory phrase at issue, rather than just two words, because § 1326 is to include “any alien who ... is at any time found in” the United States. To apply this reasoning to the case at bar, Santana illegally reentered the United States in 1992. His physical presence was not noted by immigration authorities at the time of his reentry, nor could awareness of his presence be reasonably attributed to them until his interview with the INS agent in TDCJ. Thus, he was “found in” the United States when the INS agent discovered his presence and Santana admitted to him that he had previously been deported. The date of his surreptitious entry is irrelevant for sentencing purposes, only the fact that he was “found” by immigration authorities while serving a sentence in the TDCJ. This result is in accord with the Ninth Circuit’s holding that § 1326 applied to a deported alien whose presence in a California state prison was discovered by an INS agent. United States v. Ortiz-Villegas, 49 F.3d 1435 (9th Cir.1995). Section 4 A1.1(d) provides that two points should be added to the criminal history category “if the defendant committed the instant offense while under any criminal justice system sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” Section 4A1.1(d) applies “if the defendant committed any part of the instant offense (i.e., any relevant conduct) while under any criminal justice sentence.” § 4A1.1, comment, (n.4). Thus, the § 4Al.l(d) two-point enhancement for purposes of criminal history calculation is appropriate where a continuing offense begins before the offense for which the defendant is under a criminal justice sentence because “[a] continuing offense, by its very nature, does not terminate until the date of the indictment or" }, { "docid": "5553598", "title": "", "text": "to jail or prison.”); Webster’s Third New International Dictionary 1806 (1981) (defining probation as “the action of suspending the sentence of a convicted offender in such a way that the offender is given freedom after promising good behavior and agreeing to a varying degree of supervision, to the usually imposed condition of making a report to a particular officer or court at stated intervals, and to any other additionally specified conditions”) (emphasis added). The use of “probation” in other parts of §§ 4A1.1 and 4A1.2 further confirms our view that the Sentencing Commission used the term in a broad sense, to encompass any sentence that is conditioned on the defendant’s compliance with a prescribed set of requirements, where the offense of conviction provides for the possibility of imprisonment. Section 4Al.l(d) instructs that the sentencing court should add two criminal-history points “if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” The Application Note explains that [f|or the purposes of this item, a “criminal justice sentence” means a sentence countable under § 4A1.2 ... having a custodial or supervisory component, although active supervision is not required for this item to apply. For example, a term of unsupervised probation would be included; but a sentence to pay a fine, by itself, would not be included. U.S.S.G. § 4A1.1, cmt. n.4. In light of this commentary, we have held that § 4Al.l(d) includes a sentence of conditional discharge under N.Y. Penal Law § 65.05, because while § 65.05 does not require “active supervision,” it has a “supervisory component” insofar as the sentencing court can revoke or modify the sentence if the defendant violates a condition. See United States v. Labella-Szuba, 92 F.3d 136, 138 (2d Cir.1996) (“[Tjhere is no discernible difference between a conditional discharge sentence [under § 65.05] and a sentence of unsupervised release.”); see also United States v. Miller, 56 F.3d 719, 722 (6th Cir.1995); United States v. Lloyd, 43 F.3d 1183, 1188 (8th Cir.1994). While § 4Al.l(d) is not at issue in Ramirez’s case and our" }, { "docid": "12069903", "title": "", "text": "a section 2X1.1(b)(2) reduction. Finally, we address Johnson’s claim that his criminal history category was calculated improperly. U.S.S.G. § 4Al.l(d) requires an addition of two points to a defendant’s criminal history category if “the defendant .committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” Johnson was given this increase because at the time of the attempted bank robberies he was under “intensive supervision” as a result of a juvenile court adjudication. Johnson does not challenge the one-point increase in his criminal history category given pursuant to section 4Al.l(c) as a result of this adjudication; he disputes only the holding that the juvenile court sentence of “intensive supervision” is a criminal justice sentence. We previously have construed broadly the terms of section 4Al.l(d), holding, for example, that “unsupervised probation” is a criminal justice sentence for purposes of a section 4Al.l(d) enhancement. United States v. Bailey, 955 F.2d 28, 29-30 (8th Cir.1992); United States v. Knighten, 919 F.2d 80, 83 (8th Cir.1990). Cf. United States v. Frank, 932 F.2d 700, 701 (8th Cir.1991) (a stayed adjudication with probation is included under section 4Al.l(c)). Other courts also have liberally construed section 4Al.l(d). See United States v. Niven, 952 F.2d 289, 292 (9th Cir.1991) (unsupervised probation is a criminal justice sentence under section 4Al.l(d)); United States v. Hatchett, 923 F.2d 369, 376 (5th Cir.1991) (not plain error to consider deferred adjudication probation a sentence under section 4A1.1(d)); cf. United States v. Dillon, 905 F.2d 1034, 1037 (7th Cir.1990) (outstanding warrant not a criminal justice sentence under section 4A1.1(d)). We see nothing in the text or commentary of section 4A1.2, which defines the terms of section 4A1.1, to indicate that a juvenile court sentence of “intensive supervision” should not be considered a criminal justice sentence. Juvenile court sentences obviously may be considered criminal justice sentences, see U.S.S.G. § 4A1.2(d), and the application of section 4A1.1 is predicated only on a finding or admission of guilt. While section 4A1.1 imposes different levels of enhancement based on the severity of a sentence, it applies to" }, { "docid": "22037125", "title": "", "text": "that the more complex the smuggling scheme becomes, the less culpable he becomes is inconsistent with Buenrostro. Simply claiming that a complex scheme is involved and that he is a mere courier does not automatically entitle a defendant to the deduction. See United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989), cert. denied, 495 U.S. 923 (1990). Finally, the sentencing judge presided over Earl’s trial prior to sentencing Brown. He was aware of all the facts relating to the conspiracy before ruling that Brown was not a minor participant. This disposes of the contention that the judge was not privy to all the facts relating to the conspiracy. The downward adjustment was properly denied. CONCLUSION For the reasons stated, the sentence imposed by the district court is, in all respects, AFFIRMED. . Brown's co-defendant, Earl, was tried and convicted on the original indictment. . Pursuant to U.S.S.G. § 4Al.l(d), a defendant is to receive two additional criminal history points if he or she \"committed the instant offense while under- any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” . Brown cites two cases which allegedly support his contention that supervised release is extinguished upon deportation. These cases support nothing of the sort, they merely recognize the impossibility of imposing an effective program of supervised release on a defendant who is to be deported. For example, in United States v. Ceja-Hernandez, 895 F.2d 544 (9th Cir.1990), the district court justified an upward departure on the defendant's sentence on the ground that the defendant would he immediately deported following his release from prison, precluding the court from effectively imposing a program of supervised release. The Ninth Circuit, having held that the district court's basis for the departure was impermissible, reversed the sentence. In United States v. Chavez-Botello, 905 F.2d 279 (9th Cir.1990) (per curiam), the district court stated, among other things, that the Sentencing Guidelines failed to take into account the fact that the defendant would avoid being placed on supervised release after being deported. Therefore, it departed upwards on the defendant's sentence. Again, the" }, { "docid": "1625508", "title": "", "text": "case law for this proposition, however. Section 4Al.l(d) reads: “Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” U.S. Sentencing Guidelines Manual § 4Al.l(d) (1998). The application notes to the section indicate that “a ‘criminal justice sentence’ means a sentence countable under § 4A1.2 ... having a custodial or supervisory component, although active supervision is not required for this item to apply.” U.S. Sentencing Guidelines Manual § 4Al.l(d) cmt. n. 4 (1998). Thus, although section 4A1.2(b)(2) states that “ ‘sentence of'imprisonment’ refers only to the portion [of a sentence] that was not suspended,” the term “criminal justice sentence” is not so narrowly defined. In fact, the application note goes on to state that “a term of unsupervised probation would be included” within the definition. U.S. Sentencing Guidelines Manual § 4Al.l(d) cmt. n. 4 (1998). Therefore, if a stayed sentence is like a form of unsupervised probation, it should be subject to section 4Al.l(d). We have found no published decision in our Circuit on this issue, but one unpublished decision draws this analogy. See United States v. Blodgett, 32 F.3d 571, 1994 WL 421756, at *1 (8th Cir. Aug.15, 1994) (finding section 4A1.1 enhancement appropriate for defendant under stayed sentence), cert denied, 514 U.S. 1042, 115 S.Ct. 1414, 131 L.Ed.2d 298 (1995). Other circuits have tended to agree. See United States v. Burke, 148 F.3d 832, 838 (7th Cir.) (holding that court supervision is criminal justice sentence), cert. denied, 525 U.S. 1031, 119 S.Ct. 572, 142 L.Ed.2d 476 (1998); United States v. Norman, 129 F.3d 1393, 1401-02 (10th Cir.1997) (holding that judgment and sentence with special conditions imposed under Colorado law was criminal justice sentence); United States v. Damon, 127 F.3d 139, 147 (1st Cir.1997) (holding that defendant was under criminal justice sentence notwithstanding state court’s temporary stay of execution of sentences for prior offenses). But see United States v. Kipp, 10 F.3d 1463, 1467 (9th Cir.1993) (holding that, under Colorado’s deferred sentencing scheme, suspended sentence, standing alone without accompanying term of probation," } ]

[ { "docid": "710594", "title": "", "text": "has not been entered, nor has discovery commenced. The court further finds that Defendant acted in a reasonably prompt manner in filing its motion for relief from default. Defendant also has asserted a defense on the merits with specificity and, thus, has demonstrated that allowing this case to move forward will not be futile. Cf. TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 697 (9th Cir.2001) (“If ... the defendant presents no meritorious defense, then nothing but pointless delay can result from reopening the judgment.”); Owens-Illinois, Inc v. T & N Ltd., 191 F.R.D. 522, 526-27 (E.D.Tex.2000) (“The requirement of a meritorious defense is only intended to ensure that the Court’s order vacating the judgment is not an exercise in futility.”). Based upon the foregoing considerations, coupled with this circuit’s strong policy for deciding cases on the merits, the court finds that the entries of default and default judgment on the issue of liability are due to be set aside for good cause shown. V. ORDER Accordingly, it is CONSIDERED and ORDERED that Defendant’s motion to set aside and vacate the entries of default and judgment by default on the issue of liability (Doc. No. 20) be and the same is hereby GRANTED and that the entries of default and judgment by default on the issue of liability (Doc. Nos. 11,15) be and the same are hereby SET ASIDE. . All citations herein to the Rules are to the Federal Rules of Civil Procedure. . Clevette Ellis (“Ellis”) signed his affidavit in his capacity as human resource manager of Chelsea Industries in its Montgomery division, known as Webster Industries. . In Bonner v. City of Prichard, the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit issued prior to October 1, 1981. See 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). . The court notes that Plaintiff has not seriously challenged the plausibleness of Defendant’s excuse under the \"good cause” standard. (See, e.g., Doc. No. 23 at 2 (stating that Defendant’s proffered reason for the default \"may be ... a 'plausible' excuse,' but" } ]

[ { "docid": "4261276", "title": "", "text": "at 675. After reviewing the elements said by Jackson v. Beech to control the setting aside of a default, see 636 F.2d at 832 (the court must assess whether the default is willful, whether the defendant has presented a meritorious defense, and whether the plaintiff would suffer substantial prejudice by a decision to set aside the default), the district court found “good cause” to set aside the default. The court first found that the Estate’s failure to respond substantively to the complaint did not “rise to the level of wilfulness required ... to deny the Estate’s motion to set aside the default”, relying on the Estate’s March 13,1987 letter asserting the statute of limitations defense. It appeared to have little basis for this conclusion other than the Estate’s conclusory assertion that it had acted in good faith — that is, that it had not intended to disrupt or delay the proceedings. But the Estate has proffered no excuse for its failure to file an answer, and it has neither clarified whether its letter is to be treated as an answer for purpose of the waiver provisions of Rule 12(h) nor explained why it waited 16 months after the default was entered before asking that it be set aside. Absent some explanation such as monumental incompetence, the record suggests intentional delay. On the question of a possibly meritorious defense, the court remarked without.greater specificity that the Estate had asserted various defenses. In fact, the Estate just adopted by reference the defenses of its co-defendants, including the Noerr-Pennington defense we have addressed in this opinion. The court did not explicitly rule on the plausibility of these defenses; instead, it simply stated, “If Plaintiffs believe any defenses asserted are indeed meritless, Plaintiffs can file an appropriate motion at the appropriate time.” We understand this to mean that the court found those defenses asserted sufficiently plausible to support the motion. We note that the movant is not required to prove a defense, but only to assert a defense that it may prove at trial. Because the plaintiffs’ claims against the Estate appear to be" }, { "docid": "22958402", "title": "", "text": "district court must first consider lesser sanctions. Palmer v. City of Decatur, 814 F.2d 426, 429 (7th Cir.1987). In Webber, this court held that a district court abused its discretion in dismissing an eighteen-month old case with prejudice where the plaintiff had little notice of the trial date, his conduct was not indicative of a lack of diligence in prosecuting the case, and there was “no evidence that defendant would have been unduly harmed or prejudiced” by the district court's granting the plaintiff’s request for a continuance, 721 F.2d at 1071. This case, however, is distinguishable from Webber, because the government was prejudiced here by the' Di Muccis’ failure to comply with discovery. Defendants seem to argue here (although it is difficult to tell) that their “discovery delay” was not prejudicial to the government’s case for two reasons. First, the defendants argue that this delay could not have been prejudicial to the government because it did not originally move for a default. It merely moved for an order to compel attendance at the depositions. Second, defendants maintain that the fact that the government “still had refused to accept the remaining material it had sought during discovery” at the time of the evidentia-ry hearing on affirmative relief before the magistrate showed that this delay was not prejudicial. We disagree. First, the fact that the government initially did not seek entry of a default does not show that it was not prejudiced. Accepting this argument would amount to a rule that district courts could never sua sponte enter such a default. Second, as the district court noted in denying defendants’ motion for reconsideration, “the remedial actions after the judgment of default do not excuse the months of egregious neglect.” Inryco, 708 F.2d at 1234-35. We also do not think that defendants, as they repeatedly claim, provided all the overdue discovery. Repeating a doubtful fact several times does not serve to make it so. 2. Setting Aside the Default/Vacating the Default Judgment Defendants also argue that the district court erred in refusing to set aside the default under Federal Rule of Civil Procedure" }, { "docid": "22355371", "title": "", "text": "and pro se eorrespon- dence evidences his intent to fulfill his obligations as a litigant. He initially retained counsel and filed a timely motion under Rule 12(b)(6) to dismiss plaintiffs first amended complaint. Two months before the entry of default, he informed plaintiffs counsel and the district court that he had not received Enron’s second amended complaint. Whether the defendant did or did not receive the second amended complaint in March of 1990 is disputed; what is clear is that under the case law all doubts must be resolved in favor of trial on the merits. See Sony Corp., 800 F.2d at 320; cf. Camp v. Guercio, 464 F.Supp. 343, 346 (W.D.Pa.1979) (judgment of default for failure to file timely answer could not be entered when evidence was conflicting as to whether service of amended complaint was ever accomplished). Thus, assuming that Fuchs did not receive the second amended complaint, there could be no “willfulness” in his failure to answer that pleading. When he finally received a copy of this pleading, along with Enron’s motion for entry of default, he responded immediately, making clear that he was not willing to forfeit his rights. Again, when the court entered a default against him, Fuchs assumed that it had done so without reading his June 11 letter and affidavit, and promptly applied for a motion to set aside the entry. Unlike the defendant in Action S.A., 951 F.2d at 507, who deliberately chose not to appear in an action, Fuchs made a good faith effort to adhere to the rules of the court and to protect his rights, and therefore did not willfully default. B. Prejudice to Plaintiff Setting aside the entry of default will not prejudice Enron. Plaintiff has argued on appeal that it would be unfair to require it to re-commence litigation years after these transactions occurred because the passage of time will impair its ability to prosecute. Concededly, the result we reach will cause plaintiff some delay. But delay standing alone does not establish prejudice. Cf. Davis, 713 F.2d at 916 (when vacating a default judgment, “delay alone is" }, { "docid": "22355372", "title": "", "text": "for entry of default, he responded immediately, making clear that he was not willing to forfeit his rights. Again, when the court entered a default against him, Fuchs assumed that it had done so without reading his June 11 letter and affidavit, and promptly applied for a motion to set aside the entry. Unlike the defendant in Action S.A., 951 F.2d at 507, who deliberately chose not to appear in an action, Fuchs made a good faith effort to adhere to the rules of the court and to protect his rights, and therefore did not willfully default. B. Prejudice to Plaintiff Setting aside the entry of default will not prejudice Enron. Plaintiff has argued on appeal that it would be unfair to require it to re-commence litigation years after these transactions occurred because the passage of time will impair its ability to prosecute. Concededly, the result we reach will cause plaintiff some delay. But delay standing alone does not establish prejudice. Cf. Davis, 713 F.2d at 916 (when vacating a default judgment, “delay alone is not a sufficient basis for establishing prejudice”). Additionally, though Fuchs was required under Fed.R.Civ.P. 15(a) to respond within ten days after Enron filed its second amended complaint on March 26, 1990, Enron did not file its notice of application for entry of default until June 3, 1991. The fact that plaintiff waited over a year before seeking such relief strongly suggests that some further delay will not unduly prejudice it. Enron asserts no other sort of prejudice. C. Meritorious Defense Finally, Fuchs has proffered a meritorious defense. A defendant seeking to vacate an entry of default must present some evidence beyond conclusory denials to support his defense. See, e.g., Sony Corp., 800 F.2d at 320-21. The test of such a defense is measured not by whether there is a likelihood that it will carry the day, but whether the evidence submitted, if proven at trial, would constitute a complete defense. See Keegel v. Key West & Caribbean Trading Co., 627 F.2d 372, 374 (D.C.Cir.1980); see also Davis, 713 F.2d at 916. More than sufficient evidence" }, { "docid": "4261275", "title": "", "text": "third parties. Not until August 16, 1988 — eighteen months after the complaint was filed — did the Estate make an appearance in court. On that date, the Estate asked the court to set aside the default. Finding that the motion was “egregiously untimely without explanation”, that the defense proffered — the Florida statute of limitations — was “of doubtful merit”, and that a set-aside of the default would be prejudicial to plaintiffs, the court denied the motion. Several months later, however, the court set aside the default. The court explained that its rulings in favor of the Estate’s co-defendants required it to do so, “it appearing from the entire record that the complaints fail to state meritorious claims.” When the Whelans appealed, we vacated this decision as based on an erroneous view of the law. We noted, however, that on remand the district court would be “free to consider whether to vacate the default orders” pursuant to Federal Rule 55(c)’s provision for setting aside entry of default “[f]or good cause”. Whelan I, 953 F.2d at 675. After reviewing the elements said by Jackson v. Beech to control the setting aside of a default, see 636 F.2d at 832 (the court must assess whether the default is willful, whether the defendant has presented a meritorious defense, and whether the plaintiff would suffer substantial prejudice by a decision to set aside the default), the district court found “good cause” to set aside the default. The court first found that the Estate’s failure to respond substantively to the complaint did not “rise to the level of wilfulness required ... to deny the Estate’s motion to set aside the default”, relying on the Estate’s March 13,1987 letter asserting the statute of limitations defense. It appeared to have little basis for this conclusion other than the Estate’s conclusory assertion that it had acted in good faith — that is, that it had not intended to disrupt or delay the proceedings. But the Estate has proffered no excuse for its failure to file an answer, and it has neither clarified whether its letter is to" }, { "docid": "22958403", "title": "", "text": "defendants maintain that the fact that the government “still had refused to accept the remaining material it had sought during discovery” at the time of the evidentia-ry hearing on affirmative relief before the magistrate showed that this delay was not prejudicial. We disagree. First, the fact that the government initially did not seek entry of a default does not show that it was not prejudiced. Accepting this argument would amount to a rule that district courts could never sua sponte enter such a default. Second, as the district court noted in denying defendants’ motion for reconsideration, “the remedial actions after the judgment of default do not excuse the months of egregious neglect.” Inryco, 708 F.2d at 1234-35. We also do not think that defendants, as they repeatedly claim, provided all the overdue discovery. Repeating a doubtful fact several times does not serve to make it so. 2. Setting Aside the Default/Vacating the Default Judgment Defendants also argue that the district court erred in refusing to set aside the default under Federal Rule of Civil Procedure 55(c). We reject this contention as well. We also do not think, although defendants’ brief concentrates solely on the district court’s initial refusal to set the default aside, that the district court incorrectly refused on reconsideration to vacate its entry of a default judgment against defendants. In order to have an entry of default set aside or a default judgment vacated, defendants had to show: (1) good cause for their default; (2) quick action to correct it; and (3) a meritorious defense to the plaintiff’s complaint. Breuer Elec. Mfg. v. Toronado Sys. of Am., 687 F.2d 182, 185 (7th Cir.1982). The test is the same for relief under either Rule 55(c) or Rule 60(b), but is more liberally applied in the Rule 55(c) context. Id. at 187; see also C.K.S. Eng’rs, 726 F.2d at 1206. Because the “good cause” requirement was not satisfied in this case, the district court was correct both in not setting aside its entry of default under Rule 55(c), and in denying relief to defendants upon reconsideration. Although it is difficult" }, { "docid": "3310636", "title": "", "text": "of default is vested in the sound discretion of the court. Since there is a strong policy favoring the adjudication of a case on its merits, the court’s decision whether or not to set aside an entry of default is reviewed for abuse of discretion. Jackson v. Beech, et al., 636 F.2d 831, 835 (D.C.Cir.1980). The United States Court of Appeals for the District of Columbia Circuit held that a district court must consider three criteria when considering whether or not to set aside the default: (1) whether defendant’s default was willful; (2) whether setting aside the default would prejudice plaintiff; and (3) whether defendant has asserted a meritorious defense. Jackson, 636 F.2d at 836. The D.C. Circuit also advises that when balancing these three factors the court must construe all ambiguous and disputed facts in the light most favorable to the moving party. Id. at 838. Upon considering these three criteria, the court concludes that the default should be vacated. First, defendant GWU’s default was not willful. Defendant GWU argues that it has not been properly served by plaintiff and that its Motion to Quash Service of Process was pending before the court when the Clerk entered default against defendant GWU. Contrary to plaintiffs allegation that defendant GWU willfully ignored plaintiffs complaint, defendant GWU, in fact, has been attentive throughout the proceeding. Defendant GWU promptly filed a motion to quash service of process once it became cognizant of plaintiffs complaint, and also filed a motion to set aside the default once it discovered that default had been entered against it. Therefore, taking all relevant factors into consideration, the court concludes that defendant GWU’s default was not willful. Second, the court finds that vacating this default will not prejudice plaintiffs case against defendant GWU. The current litigation is still in its early stages. The parties have not engaged in discovery and dispositive motions have not been filed. As such, plaintiffs action will not be harmed if the court sets aside the default. Moreover, plaintiffs opposition fails to argue that she will be prejudiced by a set-aside at this stage of" }, { "docid": "5154476", "title": "", "text": "2694. F.R.Civ.P. 55(c) provides that an entry of default may be set aside “for good cause shown.” This provision vests in the Court a broad discretion to set aside an entry of default in order to accomplish justice. Stuski v. United States Lines, 31 F.R.D. 188 (E.D.Pa.1962). Cf. Klapprott v. United States, 335 U.S. 601, 614, 69 S.Ct. 384, 93 L.Ed. 266 (1949). In particular, a Rule 55(c) motion may be granted whenever the court finds (1) that the nondefaulting party will not be prejudiced by the reopening, (2) that the defaulting party has a meritorious defense, and (3) that the default was not the result of inexcusable neglect or a willful act. Tozer v. Charles A. Krause Milling Co., supra. See generally Wright and Miller, Federal Practice and Procedure, § 2696. The Court has no difficulty in finding the existence of the first two factors. The record discloses no special harm to Plaintiff which would result from the reopening of this action. There would be no unreasonable delay in the consummation of this action which was started on May 3, 1972 and is set for trial in June, 1973. Nor has Plaintiff shown that during the time within which Defendants failed to answer that he has lost available evidence, incurred greater costs, or that the opportunity for fraud and collusion has increased. See Titus v. Smith, 51 F.R.D. 224 (E.D.Pa.1970). Likewise, there is no doubt that the Defendants have a meritorious defense. Not only have they filed proposed answers asserting facts which, if true, would be a complete defense to liability, but they have the defense of the statute of limitations which has been successfully asserted by the three co-defendants who were granted summary judgment. The crux of this Rule 55(c) motion is whether the default of the Defendants resulted from inexcusable neglect. Certainly the failure to take any action whatsoever until approximately 10 months after service of the complaint, and only upon receipt of notice of the Clerk’s entry of default, is evidence of neglect. Under normal circumstances, it would probably be considered inexcusable neglect. Cf. Titus v." }, { "docid": "23606575", "title": "", "text": "the district court. Traquth v. Zuck, 710 F.2d 90, 94 (2d Cir.1983). However, because modern federal procedure favors trials on the merits, “[a]n abuse of discretion need not be glaring to justify reversal.” Keegel v. Key West & Caribbean Trading Co., 627 F.2d 372, 373-74 (D.C.Cir.1980). In determining whether to set aside a default decree, the district court should consider whether the default was willful, whether setting it aside would prejudice the adversary, and whether a meritorious defense is presented. Meehan v. Snow, 652 F.2d at 277. Although a motion to set aside a default decree under Fed.R.Civ.P. 55(c) is somewhat analogous to a motion to set aside a judgment under Fed.R.Civ.P. 60(b), the standard for setting aside a default decree is less rigorous than setting aside a judgment for excusable neglect. Id. at 276. Here, the record does not indicate and the government does not argue that Angula’s failure to file a claim and answer within the time limits was willful. By the time Angula heard of the forfeiture proceeding, the time limit for filing a claim had passed. Furthermore, soon after she learned of the proceeding, Angula, through retained counsel, filed several documents opposing the forfeiture proceeding. Although the first two documents were deficient for various reasons and the third, the motion for leave to file a claim, was untimely, there was no evidence that Angula acted willfully in failing to assert her opposition to the forfeiture proceeding once she became aware of it. Furthermore, there is no evidence in the record that the United States will be prejudiced if the default decree is set aside. That setting aside the default would delay forfeiture of the property if the government were to succeed at trial or would require the government to litigate the action is insufficient prejudice to require the default decree to stand. See Keegel v. Key West & Caribbean Trading Co., 627 F.2d at 374. Finally, Angula’s motion obtusely contains a meritorious defense. In her motion and attached deed and recording, Angula proves that she is the owner of the property. The United States’ complaint and" }, { "docid": "13384942", "title": "", "text": "arguably has made a colorable showing that the Secretary’s default was willful, rather than the result of excusable neglect. However, regarding the prejudice factor, “‘[djelay in and of itself does not constitute prejudice!].]’ ” Capital Yacht Club v. Vessel AVIVA, 228 F.R.D. 389, 393-94 (D.D.C.2005) (quoting KPS & Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 15 (1st Cir.2003)). “The issue is not mere delay, but rather its accompanying dangers: loss of evidence, increased difficulties of discovery, or an enhanced opportunity for fraud or collusion.” KPS & Assocs., 318 F.3d at 15 (internal quotation marks omitted). Strong-Fisher has made no showing that the Secretary’s delay in responding to her amended complaint has created any of these dangers that might have an impact upon her ability to successfully prosecute her claim. Because Strong-Fischer has shown only mere delay, -without more, setting aside entry of default would not prejudice her. In addition, the Secretary has raised a meritorious defense that favors setting aside the entry of default. See Jackson, 636 F.2d at 836; Canales, 254 F.R.D. at 11 (requiring that the asserted defense be one that “may be proven at trial,” but not mandating that the defendant prove the defense in a motion to set aside default). The Secretary asserts that the court lacks subject matter jurisdiction over Strong-Fischer’s § 1981 claims because the United States has not waived its sovereign immunity under 42 U.S.C. § 1981. For the reasons discussed below, this defense is meritorious. On balance, although Strong-Fischer has made some showing regarding willfulness, but there has been no prejudice caused by the Secretary’s delay in responding to the amended complaint and the Secretary has raised a meritorious defense, he has shown good cause to set aside entry of default. Thus, his motion to set aside entry of default will be granted, and Strong-Fisher’s motion for default judgment will be denied as moot. II. MOTION TO DISMISS The Secretary argues that Strong-Fischer’s claims must be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction because the government has not waived sovereign immunity under § 1981 or otherwise" }, { "docid": "3310637", "title": "", "text": "been properly served by plaintiff and that its Motion to Quash Service of Process was pending before the court when the Clerk entered default against defendant GWU. Contrary to plaintiffs allegation that defendant GWU willfully ignored plaintiffs complaint, defendant GWU, in fact, has been attentive throughout the proceeding. Defendant GWU promptly filed a motion to quash service of process once it became cognizant of plaintiffs complaint, and also filed a motion to set aside the default once it discovered that default had been entered against it. Therefore, taking all relevant factors into consideration, the court concludes that defendant GWU’s default was not willful. Second, the court finds that vacating this default will not prejudice plaintiffs case against defendant GWU. The current litigation is still in its early stages. The parties have not engaged in discovery and dispositive motions have not been filed. As such, plaintiffs action will not be harmed if the court sets aside the default. Moreover, plaintiffs opposition fails to argue that she will be prejudiced by a set-aside at this stage of the case. Finally, the court considers whether defendant GWU has filed a meritorious defense in response to plaintiffs complaint. Instead of attaching a verified answer to its motion to set aside an entry of default as required by Local Rule 108(g), defendant GWU requested the court to waive the filing of an answer until service of process has been perfected. Specifically, defendant states that once it is properly served it will set forth affirmative defenses to plaintiffs complaint. Since there is a strong policy favoring resolution of the parties’ disputes on their merits, the court finds that justice requires the court grant defendant GWU’s request and vacates the default. See Jackson, 636 F.2d at 835-36. Accordingly, the court concludes that the Clerk’s entry of default against defendant GWU should be vacated. Since the court is vacating the default, plaintiffs Motion for Default Judgment is denied as moot. III. CONCLUSION For the reasons stated above, it is this 2 day of July, 1997, ORDERED that defendant GWU’s Motion to Quash Service of Process be and is" }, { "docid": "7120878", "title": "", "text": "result of the internal confusion arising from the liquidation and from the vacation of the Wall Street Office that a timely response (answer or motion) was not filed. When a business changes its address, it is not relieved of the responsibility of keeping track of its mail. Internal confusion springing from re-organization does not free a business of its duty to answer complaints. In short, the Court does not find impressive defendant Hutton’s reasons for being in default. But, when setting aside a default as opposed to vacating a default judgment, it is not always necessary that the neglect or oversight be excusable. See Bavouset v. Shaw’s of San Francisco, 43 F.R.D. 296, 298 (S.D.Tex. 1967). Finally, the Court must consider whether there will be undue prejudice to plaintiffs if the defendants are taken out of default. Plaintiffs point to no specific way in which they would be prejudiced except to say that vindication of their rights would be delayed. If it were clear that no meritorious defenses existed then delay would amount to undue prejudice. But it is not clear, that defendants have no meritorious defenses ; consequently, the Court does not think plaintiffs will be unduly prejudiced if defendants are taken out of default. Earlier this Court noted that a motion to set aside a default is addressed to the Court’s discretion. Exercising that discretion, the Court concludes that the default should be set aside. Defendants have alleged meritorious defenses and plaintiffs will not be unduly prejudiced by a hearing on the merits. While neither defendant has presented well justified reasons for their actions, the defendants do not appear to have been in willful disregard of the processes of the Court. Viewing the totality of circumstances, the default should be lifted. Defendant Strid moved to quash return of service as an alternative to its motion for relief under Fed.R.Civ.P. 55(c). Because personal service on defendant Strid appeared easily obtainable, this Court suggested in its order of December 9, 1974, that defendant Strid be served without invoking the Georgia Secretary of State as agent. Defendant Strid has now been" }, { "docid": "17282724", "title": "", "text": "D.C., states simply that “due to a potential conflict of interest [the] [Office of Corporation Counsel] determined that it could not represent Mrs. Shepherd and individuals connected with the D.C. Department of Corrections.” Memorandum of Points and Authorities in Support of Motion to Vacate Default Judgment at 1. The Attorney General, D.C., argues that the default judgment against defendant Shepherd should be set aside pursuant to Rule 60(b)(1) of the Federal Rules of Civil Procedure for “excusable neglect.” Id. at 4-5. The Attorney General, D.C., argues that three factors warrant the grant of its motion: (1) defendant Shepherd “plainly has a meritorious defense”; (2) defendant Shepherd’s default “[w]as [n]ot the [r]esult of [c]ulpable [c]onduct”; and (3) Plaintiff “would not be prejudiced in the event that the default is vacated.” Id. at 5-7. Plaintiff, in her opposition, submits that the Attorney General, D.C., has failed to satisfy the rigorous Rule 60 standard. More specifically, Plaintiff maintains that (1) no credible explanation has been offered for defendant Shepherd’s “unresponsivefnessj” prior to January, 2004; (2) no defense, meritorious or otherwise, has ever been offered; and (3) the delay which the grant of the motion would occasion “would be extremely prejudicial” to plaintiff. Plaintiffs Opposition at 2-6. In a two-page reply, the Attorney General, D.C., responds to only two of the three considerations addressed by plaintiff. First, the Attorney General submits that defendant Shepherd has a meritorious defense because “[t]here is absolutely no evidence that Ms. Shepherd ever requested or even remotely suggested ... that the students be abused[,j” and that plaintiff “did not testify that Ms. Shepherd was ever in a position to intervene on his behalf.” Reply of Defendant Dorothy Shepherd to Opposition to Motion to Vacate Default Judgment (“Defendant’s Reply”) (Docket No. 93) at 1. Second, the Attorney General submits that plaintiff “fails to identify any actual prejudice that would result” from the grant of the motion to vacate the default judgment against defendant Shepherd. Id. at 2. DISCUSSION This court has recognized that [djefault judgments are generally disfavored by courts, because entering and enforcing judgments as a penalty for delays" }, { "docid": "722041", "title": "", "text": "not enter judgment or set a hearing on damages, despite the submission of a clerk’s certificate. According to the Second Circuit, “opposition to a motion for a default judgment can be treated as a motion to set aside the entry of a default, despite the absence of a formal Rule 55(c) motion” (Meehan v. Snow, 652 F.2d 274, 276 [2d Cir.1981]). In the present case, only the defendant Karen Marotta filed timely opposition to the plaintiffs motions. The motion as to the defendants Michael Marotta and Eric Sackstein were submitted without opposition. At the present time, however, these two defendants move to vacate their defaults. The Court will first address this motion to vacate the default by the three defendants. The Court notes at the outset that the Second Circuit does not favor defaults and prefers the resolution of actions on the merits {See Meehan, supra, 652 F.2d at p. 277). In evaluating a motion to set aside the entry of default, the Second Circuit stated that: “Under Rule 55(c), the principal factors bearing on the appropriateness of relieving a party of a default are whether the default was willful, whether setting it aside would prejudice the adversary, and whether a meritorious defense is presented ... Defaults are not favored, particularly when the case presents issues of fact, and doubts are to be resolved in favor of a trial on the merits” (Meehan, supra, 652 F.2d at p. 277). Applying this standard, the Court will examine the factors as to each defendant. As to the defendant Karen Marotta, the Court finds that: (1) the default was not willful because it was due to the mistaken belief that she had additional time to respond to the complaint, (2) the defendant has a meritorious defense based upon the alleged failure of the plaintiff to state a claim as to her, and (3) the plaintiff is not prejudiced. Accordingly, the motion by the defendant Karen Marotta to vacate the default is granted and the motion by the plaintiff for a judgment and hearing to assess damages is denied. As to the defendants Michael" }, { "docid": "13384939", "title": "", "text": "to file a response within the time allowed under Rule 15(a)(8), and Strong-Fisher secured entry of default. The Secretary has moved under Rules 55(c), 12(b)(1), and 12(b)(6) to set aside the default and to dismiss the complaint, arguing that the United States has not waived its sovereign immunity under 42 U.S.C. § 1981, and, as result, Strong-Fisher has failed to state a claim upon which relief can be granted. Strong-Fisher has filed a motion for default judgment, contending that default judgment should be granted in this case because the Secretary deliberately failed to respond to her amended complaint. DISCUSSION I. MOTION TO SET ASIDE ENTRY OF DEFAULT A court can set aside a default under Rule 55(c) “for good cause.” Fed. R.Civ.P. 55(c). Default judgments are generally disfavored by courts “perhaps because it seems inherently unfair to use the court’s power to enter and enforce judgments as a penalty for delays in filing.” Jackson v. Beech, 686 F.2d 831, 835 (D.C.Cir.1980); see Webb v. District of Columbia, 146 F.3d 964, 971 (D.C.Cir.1998) (“[A] default judgment must be a sanction of last resort to be used only when less onerous methods ... will be ineffective or obviously futile.” (internal quotation marks omitted)). Thus, while a trial court has discretion whether to set aside an entry of default, “there is a strong policy favoring the adjudication of a case on its merits[.]” Baade v. Price, 175 F.R.D. 403, 405 (D.D.C.1997). A court should consider three factors when determining whether to set aside an entry of default: “ ‘whether (1) the default was willful, (2) a set-aside would prejudice the plaintiff, and (3) the alleged defense was meritorious.’ ” Jackson, 636 F.2d at 836 (quoting Keegel v. Key West & Caribbean Trading Co., 627 F.2d 372, 374 (D.C.Cir.1980)); see Canales v. A.H.R.E., Inc., 254 F.R.D. 1, 8-12 (D.D.C. 2008) (applying the Jackson three-factor test); Baade, 175 F.R.D. at 405-06. Regarding the first factor, “ ‘the boundary of willfulness lies somewhere between a case involving a negligent filing error, which is normally considered an excusable failure to respond, and a deliberate decision to default," }, { "docid": "17210131", "title": "", "text": "to set the default aside. Action on a motion to set aside a default is within the discretion of the district court, McGrady v. D’Andrea Electric, Inc., 434 F.2d 1000 (5th Cir.1970). Hence a denial of the motion will not be set aside on appeal unless there was an abuse of discretion. We find no such abuse here. The government says its default was not willful. New defaults are. Due process is no less denied by neglect than by wilfulness. Here the district court found that the government “continuously mishandled” the matter. It failed to respond in any manner to the complaint for over six months. It failed to respond in any manner to the March 22, 1982 order directing it to advise the court of its intention within 10 days. It made no response to the April 1, 1982 entry of default, until at the June 3 hearing it said it had been unaware of that entry. Given five days to file something to counter entry of default judgment, it waited 15 days and then filed a forfeiture proceeding 10 months after seizing the property. It waited 18 days, after being given five, to file a motion to dismiss. Such negligent prosecution weighs heavily in favor of the district court’s refusal to set aside the default. The government’s argument concerning the need to balance prejudice to Robinson against its allegedly meritorious defense to his complaint fails in light of two considerations: (1) the denial of due process to Robinson is prejudicial; (2) belated filing of a forfeiture proceeding does not retroactively wipe the slate clean of that denial. We do not here face, and therefore need not discuss, the type of situation on which the government’s argument is based, i.e., a virtually simultaneous filing of a forfeiture proceeding and a private action for recovery. CONCLUSION This court’s stay of execution of the district court’s Final Judgment is accordingly vacated and that Final Judgment is affirmed. AFFIRMED. . A motion under Rule 55(c) to set aside the entry of default would appear to have been more appropriate. That Rule states:" }, { "docid": "15808989", "title": "", "text": "ECF No. 27. The Court then held an evidentiary hearing on August 12, 2014, three-and-a-half years after Sudan was served, and issued a lengthy opinion on March 31, 2015. Only after two more months had elapsed did Sudán finally appear and file the present motion. This time period is not comparable to those that were excused in the cases Sudan cites — in many of which the court, in any event, found the defendant’s default willful but set aside the entry of default for other reasons. See, e.g.,.Shatsky, 795 F.Supp.2d at 81-82 (finding default willful, but nevertheless setting aside default, when motion was filed two and a half years after default was entered, but before a default judgment was entered); Gilmore v. Palestinian Interim Self-Gov’t Auth., 675 F.Supp.2d 104, 108-09 (D.D.C.2009) (finding default willful, but nevertheless setting aside default, where defendants filed a motion to vacate the Clerk’s entry of default six months after default was entered); Biton v. Palestinian Interim Self Gov’t Auth., 233 F.Supp.2d 31, 32-33 (D.D.C.2002) (resolving “doubt” in favor of defendants, and finding default not willful, where defendants filed a motion to set aside default “shortly after” Clerk’s entry of default, and within five. months of when plaintiffs had filed a second amended complaint). Simply put, the Court finds the length of Sudan’s absence from this case different in kind. Cf. Owens, 174 F.Supp.3d at 255, 2016 WL 1170919, at *7 (finding Sudan’s conduct did not constitute excusable neglect under Rule . 60(b) where Sudan “was absent from this litigation for just over four years, and it was only after nearly five years that Sudan filed the first .of these motions to vacate” (emphasis in original)). Second, Sudan’s explanation that it was preoccupied by troubles at home is unpersuasive. Sudan has provided a declaration from its ambassador to the United States, Ambassador Maowia O. Khalid, which explains that its failure to appear was “principally during periods of well-known civil unrest and political turmoil in Sudan,’ in addition to’ times of natural disaster.” Decl. of Ambassador Maowia O. Khalid ¶4, ECF No. 55-2 [hereinafter “Khalid Deck”]. In" }, { "docid": "15526268", "title": "", "text": "and entered it as an order. Defendants failed to respond timely and sought no extension of time within which to respond. On February 7, 2002, plaintiffs moved for entry of default against the PA and the PLO, and the clerk entered default. Default was entered apparently just as defendants were arranging to deliver for filing a motion to dismiss. Upon learning of the entry of default, defendants filed shortly thereafter a motion to set aside default and for leave to file their motion to dismiss, while plaintiffs filed a motion for entry of default judgment against the PA and the PLO. DISCUSSION Resolving litigation by default is disfavored because of “the strong policies favoring the resolution of genuine disputes on their merits.... ” Jackson v. Beech, 636 F.2d 831, 835 (D.C.Cir.1980). Thus, entry of default may be set aside merely “for good cause shown.” Fed.R.Civ.P. 55(c). In determining whether good cause is shown, courts balance three factors: whether “1) the default was willful, 2) a set-aside would prejudice plaintiff, and 3) the alleged defense was meritorious ....” Keegel v. Key West & Caribbean Trading Co., 627 F.2d 372, 373 (D.C.Cir.1980); see also Baade v. Price, 175 F.R.D. 403, 405-406 (D.D.C.1997) (citing Jackson, 636 F.2d at 836). In assessing the factual circumstances asserted by the parties, “all doubts are resolved in favor of the party seeking relief.” Jackson, 636 F.2d at 836 (citation omitted). Defendants offer two explanations for their delay. They say that the escalating Palestinian-Israeli conflict hampered communications necessary to prepare a response, and that defendants needed to coordinate their positions taken in multiple pending cases. Defendants have supplied no specifics — by proffer, affidavit, or otherwise — to support these claims. They have failed to identify who sought to communicate with whom and how, when it was, what specific events prevented the contacts, and what specifically prevented any claimed need to coordinate their litigation positions. Most tellingly, defendants never sought from the Court or the plaintiffs an extension on their deadline, and wholly fail to explain why they did not or could not. Defendants’ explanations for their delay" }, { "docid": "22188219", "title": "", "text": "Krause Milling Co., supra at 244-46. Accord: Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir.1982); Meehan v. Snow, supra, at 277. In considering a motion to set aside entry of a judgment by default a district court must apply Rule 60(b) “equitably and liberally ... to achieve substantial justice.” Blois v. Friday, 612 F.2d 938, 940 (5th Cir.1980) (per curiam). Judgment by default is a drastic step which should be resorted to only in the most extreme cases. Where default results from an honest mistake “rather than willful misconduct, carelessness or negligence” there is especial need to apply Rule 60(b) liberally. Ellingsworth v. Chrysler, 665 F.2d 180, 185 (7th Cir.1981). We agree with the Third Circuit that the three factors which control the decision of a Rule 55(c) motion to set aside entry of default also apply to a Rule 60(b) motion to set aside entry of a judgment by default: Our most recent foray into the field was Farnese v. Bagnasco, 687 F.2d 761 (3d Cir.1982), where again it was a default entry, not a judgment, that was at issue. Although as we have noted the standards for the two situations are not always the same, we believe that the three factors discussed in Farnese should be applied in both situations: 1. Whether the plaintiff will be prejudiced; 2. Whether the defendant has a meritorious defense; and 3. Whether culpable conduct of the defendant led to the default. Farnese, at 764; see also Livingston Powdered Metals, Inc., [v. N.L.R.B.] 669 F.2d [133] at 136 [3rd Cir.1982]; Tozer, 189 F.2d at 244-45, 246. Feliciano v. Reliant Tooling Co., Ltd., 691 F.2d 653, 656 (3d Cir.1982). See Rooks v. American Brass Co., 263 F.2d 166, 168 (6th Cir.1959) (per curiam). In the present case there is no claim that United will be prejudiced from reopening the judgment. Mere delay in satisfying a plaintiff’s claim, if it should succeed at trial, is not sufficient prejudice to require denial of a motion to set aside a default judgment. Keegel v. Key West & Caribbean Trading Co., supra, 627 F.2d at 374; Feliciano" }, { "docid": "6138579", "title": "", "text": "motion to set aside default: the excuse or explanation proffered by the Defendant for the conduct giving rise to the default; the existence of a meritorious defense to the action; the risk of prejudice to the Plaintiff; the amount of money involved in the action; the parties’ good faith or lack thereof; and the timing of the motion to set aside. Id. Defendant offers the following excuse for its failure to file a timely response to Plaintiffs' action: the Complaint was received promptly after it had been filed in this Court, but was logged in to Defendant’s in-house counsel’s filing system under an improper name, and was, as a result, routed through counsel’s office as one of 15 multi-defendant asbestosis cases rather than as a products liability case. The filing error was not discovered until September 11, 1987, when Defendant’s in-house counsel received notice of Plaintiff's Motion for Entry of Default. Defendant attributes the filing error in part to the sheer volume of cases its in-house counsel processed in June and July—approximately 175 each month. Defendant has raised two potentially meritorious defenses to Plaintiffs’ action— compliance with industry standards, and comparative negligence—and supported both with affidavits. Further, it is clear from the record that Plaintiffs’ action was not unfairly prejudiced by Defendant’s delay, and that Plaintiffs’ action involves a significant amount of money; Plaintiffs seek damages of more than $2 million. Finally, there is no evidence that Defendant’s delay in responding was fueled by bad faith. Defendant has satisfied the Court that it was unaware of the existence of the action until after default had been entered against it. From that point on, the record reveals a concerted good faith effort to rectify the delay. Defendant appointed local counsel immediately after discovering its administrative error. The instant Motion to Set Aside Default, and two supporting affidavits, were filed merely two working days after default was entered. The Court finds, therefore, Defendant’s failure to respond in a timely fashion to Plaintiffs’ action constitutes excusable neglect under the more lenient standard applied to motions brought under Rule 55(c), See Goodwin v. Roper" } ]

[ { "docid": "22686808", "title": "", "text": "with a tire iron. A number of agents entered the warehouse. No persons were found inside, but the agents saw numerous bales of marijuana in plain view. Supervisor Garibotto then ordered everyone out of the warehouse. Agents did not reenter the warehouse until a warrant was obtained some eight hours later. The warehouse was kept under surveillance during the interim. It is undisputed that the agents made no effort to obtain a warrant prior to the initial entry. The agents had not begun to prepare a warrant affidavit, and according to FBI Agent Cleary, who supervised the FBI’s involvement, they had not even engaged in any discussions of obtaining a warrant. App. 52. The affidavit in support of the warrant obtained after the initial search was prepared by DEA Agent Keaney, who had tactical control over the DEA agents, and who had participated in the initial search of the warehouse. The affidavit did not mention the warrantless search of the warehouse, nor did it cite information obtained from that search. In determining that the challenged evidence was admissible, the Court of Appeals assumed that the initial warrantless entry was not justified by exigent circumstances and that the search therefore violated the Warrant Clause of the Fourth' Amendment. Under the circumstances of these cases, the admission of the evidence “reseized” during the second search severely undermines the deterrence function of the exclusionary rule. Indeed, admission in these cases affirmatively encourages illegal searches. The incentives for such illegal conduct are clear. Obtaining a warrant is inconvenient and time consuming. Even when officers have probable cause to support a warrant application, therefore, they have an incentive first to determine whether it is worthwhile to obtain a warrant. Probable cause is much less than certainty, and many “confirmatory” searches will result in the discovery that no evidence is present, thus saving the police the time and trouble of getting a warrant. If contraband is discovered, however, the officers may later seek a warrant to shield the evidence from the taint of the illegal seareh. The police thus know in advance that they have little" } ]

[ { "docid": "23096186", "title": "", "text": "speculative as to whether the police would have obtained a warrant to search the trailer absent the original entry. Furthermore, it is obvious that the affidavit for the warrant contains sufficient probable cause apart from information the officers learned via the original entry. For example, it reflects that the surveillance team searched the confidential informant and his automobile and found them free of drugs. It notes that the surveillance team observed the informant purchase drugs from Herrold and saw Herrold enter his trailer home after the sale. It also states that Hill performed a field test on the drugs, which tested positive for the presence of cocaine. There is thus a clear inference that there was cocaine in the trailer. The district court, relying principally on one sentence in the plurality’s decision in Murray, suppressed the evidence. The district court observed that, under Murray, a warrant will not be deemed to have been validly executed “if the agents’ decision to seek the warrant was prompted by what they had seen during their initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.” App. at 13 (quoting Murray, 108 S.Ct. at 2536). The district court thus reasoned that, because the application for the warrant contained information discovered during the unlawful entry, this information necessarily “affected” the justice’s decision to issue the warrant. In the district court’s words, “[t]he affidavit upon which the search warrant was based clearly contains facts obtained and discovered as a result of the illegal, warrantless entry and arrest of Herrold in his home. Therefore, the evidence discovered during the initial warrantless arrest by Trooper Hill affected the production of the warrant.” App. at 14 (emphasis supplied). We do not agree with the approach of the district court because it conflicts with the policy underlying the independent source doctrine — namely, that the police not be placed in a worse position than they would have been in had they not engaged in illegal activity. To promote this interest, the Court’s use of “affect” in Murray must" }, { "docid": "1015768", "title": "", "text": "Cir.1966) (en banc). In Corngold, customs agents opened a package that the appellant had left at a Trans World Airlines’ cargo loading platform at Los Angeles International Airport. The agents believed the package contained smuggled watches. They opened one of the packages, found that it contained a large quantity of watches, and resealed the package. The packages were then flown to New York, where customs agents maintained constant surveillance until they were claimed three weeks later. Our court, sitting en banc, held that the warrantless airport search was not justified even if the customs agents had probable cause to believe the packages contained contraband. 367 F.2d at 3. The court based its holding on the fact that the government made no showing that the packages might have been removed before a warrant could be obtained, that neither appellant nor the airline was threatening to remove them, and that from the time appellant left the packages with the carrier in Los Angeles they were subject to the effective control of the customs agent. Thus, the teaching of Corngold is that exigency does not justify a warrantless search of packages when the owner has temporarily surrendered custody of them to a carrier and the packages are destined for another city. A warrant could have been obtained to seize the packages upon their arrival at their destination. The only conceivable distinction between the facts of Corngold and those here is that the agents knew that Licata had a friend who worked at Eastern Air Lines Freight. Supra at 544. The record, however, yields no evidence on the issue whether the officers were in fact concerned that the package might be taken by Licata’s friend. This is not surprising given that the issue of exigent circumstances was not litigated below. Indeed, it was argued for the first time in supplemental briefs requested by this panel. As a result, there is no evidence on the issue whether the agents were concerned that Licata’s friend might remove the package. Although the government conceivably could have made a showing of exigent circumstances had it raised the issue" }, { "docid": "23096184", "title": "", "text": "his decision to issue the warrant. Id. at 542, 108 S.Ct. at 2536. Although the Court agreed with the court of appeals’ determination that the warrant application contained sufficient probable cause apart from the information that had been unlawfully obtained, it remanded the case to the district court for that court to determine whether “.the agents’ decision to seek the warrant was prompted by what they had seen during the initial entry_” Id. at 542, 108 S.Ct. at 2536. D. INDEPENDENT SOURCE BASED UPON PARTIALLY TAINTED WARRANT: Because the evidence in this case, except for the gun which was seized on the initial entry and which we will consider later, was seized during the warranted search, this is an independent source case. Accordingly, we must determine if, without regard to information obtained during the original entry, the police would have applied for the search warrant and we must also determine if there was probable cause for the warrant to be issued. Resolution of these issues is not difficult. It is inconceivable that the police would have left the premises without searching the trailer and without arresting Herrold since they had information that Herrold, who was known to them as a drug dealer with a record of convictions for violent crimes, had obtained a large quantity of cocaine some of which he sold to the informant. The clear inference from the facts known to the officers was that the remaining cocaine after the informant’s modest purchase was in the trailer. In addition, the informant had advised them that Herrold had a gun. Furthermore, the evidence demonstrated that the police intended to obtain a warrant after the controlled buy but did not do so because Herrold was leaving the premises. Accordingly, we are certain that if the police had not made their original warrantless entry, they would have arrested Herrold if he left the trailer, an act which Herrold concedes would have been lawful, and, in any event, would have sought the warrant to search the trailer. We therefore reject as clearly erroneous the conclusion by the district court that it was" }, { "docid": "20784867", "title": "", "text": "search without one. No arrest was made to which a search without a warrant might be incident. The government made no showing that the packages might be removed before a warrant could be obtained. Appellant was not threatening to remove them, nor was the airline, except under such conditions as the officers saw fit to impose. From the time appellant left the packages with the carrier in Los Angeles they were subject to the effective control of the customs agents. There was nothing to prevent the agents from securing a warrant on a proper showing, either before the packages were shipped from Los Angeles or after they arrived in New York. On this record, search without a warrant was not justified even if the customs agents had probable cause to believe the packages contained contraband. .” P.3. (Emphasis supplied.) (Footnote omitted.) Gold, however, involved a search by an airlines employee, not a government agent, and a subsequent search by government officers on information gained from this prior search. The court held the government search valid, not on any “exigent circumstance” principle, but bécause the private search was legal. The Government has not shown why it would have been unreasonable for Clements to telephone ahead so a fellow agent could have obtained a proper warrant. The fact Clements had probable cause to search did not give him the right to do so absent any “exigent circumstances.” Corngold v. United States, supra; Chapman v. United States, 1961, 365 U.S. 610, 613-616, 81 S.Ct. 776, 5 L.Ed.2d 828. Dicta in United States v. Van Leeuwen, 1969, 397 U.S. 249, 253, 90 S.Ct. 1029, 25 L.Ed.2d 282, is suggested as a basis for the unreasonableness of telephoning ahead to secure a warrant and thus, the propriety of a warrantless search. Van Leeuwen involved a search with a warrant. Since postal officials had authority to detain certain mail sought to be searched, the Court stated it would be more prudent to detain the mail until the search warrant was obtained than to locate the mail enroute. The facts are quite different from our situation, where" }, { "docid": "22220305", "title": "", "text": "U.S. 747, 752-754, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). II Appellant asserts that opening the packages at Los Angeles International Airport and inspecting their contents was an unconstitutional search. 1. The officers had no warrant, and there were no circumstances which might have justified a search without one. No arrest was made to which a search without a warrant might be incident. The government made no showing that the packages might be removed before a warrant could be obtained. Appellant was not threatening to remove them, nor was the airline, except under such conditions as the officers saw fit to impose. From the time appellant left the packages with the carrier in Los Angeles they were subject to the effective control of the customs agents. There was nothing to prevent the agents from securing a warrant on a proper showing, either before the packages were shipped from Los Angeles or after they arrived in New York. On this record, search without a warrant was not justified even if the customs agents had probable cause to believe the packages contained contraband. Chapman v. United States, 365 U.S. 610, 613-616, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); Jones v. United States, 357 U.S. 493, 497-498, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); United States v. Jeffers, 342 U.S. 48, 51-52, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 70 L.Ed. 145 (1925). 2. The government makes a passing suggestion that authority for the search may be found in 19 U.S.C.A, § 482 — a broad delegation of authority to . customs agents to search and seize illegally imported merchandise. We have treated the outer limits of authority delegated by the statute as available only in border searches (Cervantes v. United States, 263 F.2d 800, 803, n. 5 (9th Cir. 1959); see e. g., King v. United States, 348 F.2d 814 (9th Cir. 1965); Denton v. United States, 310 F.2d 129, 132 (9th Cir. 1962); Plazola v. United" }, { "docid": "22683632", "title": "", "text": "when officers stop an automobile, it may be less than clear whether they suspect with a high degree of certainty that the vehicle contains drugs in a bag or simply contains drugs. If the police know that they may open a bag only if they are actually searching the entire car, they may search more extensively than they otherwise would in order to establish the general probable cause required by Ross. Such a situation is not farfetched. In United States v. Johns, 469 U. S. 478 (1985), Customs agents saw two trucks drive to a private airstrip and approach two small planes. The agents drew near the trucks, smelled marijuana, and then saw in the backs of the trucks packages wrapped in a manner that marijuana smugglers customarily employed. The agents took the trucks to headquarters and searched the packages without a warrant. Id., at 481. Relying on Chadwick, the defendants argued that the search was unlawful. Id., at 482. The defendants contended that Ross was inapplicable because the agents lacked probable cause to search anything but the packages themselves and supported this contention by noting that a search of the entire vehicle never occurred. Id., at 483. We rejected that argument and found Chadwick and Sanders inapposite because the agents had probable cause to search the entire body of each truck, although they had chosen not to do so. Id., at 482-483. We cannot see the benefit of a rule that requires law enforcement officers to conduct a more intrusive search in order to justify a less intrusive one. To the extent that the Chadwick-Sanders rule protects privacy, its protection is minimal. Law enforcement officers may seize a container and hold it until they obtain a search warrant. Chadwick, 433 U. S., at 13. “Since the police, by hypothesis, have probable cause to seize the property, we can assume that a warrant will be routinely forthcoming in the overwhelming majority of cases. ” Sanders, 442 U. S., at 770 (dissenting opinion). And the police often will be able to search containers without a warrant, despite the Chadwick-Sanders rule, as" }, { "docid": "23096193", "title": "", "text": "a warrant based on the untainted information in the affidavit which the police had acquired prior to their entry into Herrold’s trailer. Likewise, the district court’s observation that “whether the Government would have followed through on its averred intention to seek a search warrant before entering Herrold’s home is speculative,” in addition to being clearly erroneous, misses the mark. The critical question in this regard is whether the first search prompted the officers to obtain a warrant, not whether the police were already in the process of obtaining a warrant. Here it is clear that the police were motivated by circumstances independent of their initial observations in the trailer to seek the warrant. We recognize, of course, that this case presents a special question with regard to the gun because the police actually seized it during the unlawful entry and not during the warranted search. Nevertheless, we see no reason not to treat the gun as also being'seized pursuant to the search warrant which specifically authorized the seizure of “firearms of any type.” The Supreme Court in Murray rejected the argument that objects “once seized cannot be cleanly reseized without returning the objects to private control,” 487 U.S. at 541-42, 108 S.Ct. at 2535 (quoting United States v. Silvestri, 787 F.2d at 739), and stated that under the independent source doctrine “reseizure of tangible evidence already seized” is permissible “[s]o long as the later, lawful seizure is genuinely independent of an earlier tainted one.” Id. It would be dangerous to require officers to leave a fully-loaded, semi-automatic weapon unsecured until they obtained a warrant, and senseless to require the formality of physically re-seizing the gun already seized during the initial entry. Thus, the only logical implication under Murray is that the gun is as admissible under the independent source doctrine as the other, non-dangerous evidence, seen during the initial entry but not seized until the warrant-authorized search. In sum, the district court should have asked two questions: (1) whether a neutral justice would have issued the search warrant even if not presented with information that had been obtained during an" }, { "docid": "4426977", "title": "", "text": "684 F.2d 1066, 1074 (2d Cir.1982) (applying Ross retroactively). B. The Applicability of Ross The appellees argue that even if Ross is given retroactive effect, it does not apply here. They argue that the customs agents must have known that the packages contained all the contraband, so that their suspicion should have focused exclusively on the packages and not on the trucks. As a consequence, the automobile search was unauthorized and a warrant was required to search the containers under the rule of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Ross did not purport to overrule Chadwick. The customs officers, however, remained some distance away while the defendants placed the packages inside the trucks. The officers did not see the packages nor have a chance to seize the contraband until after loading. The officers had probable cause to search both vehicles, not just the newly-discovered bales. Their suspicion did not focus solely on the packages; it was not obvious that all the contraband would be in the bales. The appellees could have easily secreted other drugs elsewhere in the vehicles. In United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), the police officers had all the facts giving them, probable cause to believe that contraband was in the footlocker and the suitcases before those containers were placed in the trunks of the cars. Placing the containers in the cars did not give the officers probable cause to search the entire vehicle. In Ross and in this case, the officers’ suspicions were not so specific. They did not know the exact nature and packaging of the contraband transferred from the airplanes to the trucks before arriving on the scene. The officers had probable cause to search both trucks. Under Ross, they also could have opened the packages as part of that search. C. The Three-Day Delay We next must determine whether the fact that the packages could have been searched without a warrant at the time of their seizure means that they could be searched without a warrant some" }, { "docid": "18717306", "title": "", "text": "to suppress the evidence obtained from his residence. The district court found the entry and search legal, and that the warrant was supported by probable cause. Wulferdinger filed a timely appeal and we exercise jurisdiction under 28 U.S.C. § 1291 (1982). DISCUSSION This court defers to the factual findings of the district court unless clearly erroneous, but questions of application of the law to those facts are reviewed de novo. United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir.1984) (en banc), cert. denied, — U.S. -, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The legal questions raised in this appeal are whether the warrantless entry was supported by both probable cause and exigent circumstances; whether the district court erred in refusing to hold a Franks hearing on the accuracy of the warrant application; and finally, whether, if the original entry was illegal, the information obtained tainted the later warrant. I. PROBABLE CAUSE A warrantless search of a home is illegal unless the officers had probable cause and were faced with exigent circumstances. Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564 (1971). Wulferdinger argues the agents lacked probable cause to search the 418 Yorkshire residence because the officers believed the cocaine had been brought into the house by Riveira, and therefore, had no reason to think that the house was more than a meeting place. Further, he argues that the cocaine could not have been in 418 Yorkshire before Riveira got there because Jackson produced the cocaine only after making a second trip to 418 Yorkshire once Riveira had arrived. We reject this reasoning. Only officer Mackey stated a belief that Riveira was the source of the cocaine. Johnson, the supervising officer, ordered Riveira stopped because he believed Riveira was “either a cocaine supplier, a person removing evidence, or was a person who lived at 418 Yorkshire Way.” The search of Riveira’s car produced only a small amount of cash and cocaine, and no “scales, other weighing devices, or narcotics packaging material.” Johnson therefore believed that cocaine and those items connected with the" }, { "docid": "22679415", "title": "", "text": "does not contest it in this Court. Because the Government has decided not to press its argument that exigent circumstances existed, we need not and do not address this aspect of the Court of Appeals decision. We are concerned only with whether the Court of Appeals properly determined that the Fourth Amendment did not require suppression of the evidence seized during execution of the valid warrant. In Agapito, DEA agents, following a 2-day surveillance of the defendant’s hotel room, arrested the suspected occupants of the room in the lobby of the hotel. After the arrests, the agents entered the hotel room and remained within, with the exception of periodic departures, for almost 24 hours until a search warrant issued. During their stay in the room, the agents seized but did not open a suitcase found in the room. In the search pursuant to the warrant, the agents found cocaine in the suitcase. Although the Second Circuit held that the initial entry was illegal, it held that the cocaine need not be suppressed because it was discovered in the search under the valid warrant. In two instances, the Court has allowed temporary seizures and limited detentions of property based upon less than probable cause. In United States v. Van Leeuwen, 397 U. S. 249 (1970), the Court refused to invalidate the seizure and detention — on the basis of only reasonable suspicion — of two packages delivered to a United States Post Office for mailing. One of the packages was detained on mere suspicion for only 1% hours; by the end of that period enough information had been obtained to establish probable cause that the packages contained stolen coins. But the other package was detained for 29 hours before a search warrant was finally served. Both seizures were held reasonable. In fact, the Court suggested that both seizures and detentions for these “limited times” were “prudent” under the circumstances. Only last Term, in United States v. Place, 462 U. S. 696 (1983), we considered the validity of a brief seizure and detention of a traveler’s luggage, on the basis of a" }, { "docid": "7898535", "title": "", "text": "authorized officers to search the residence for items related to drug trafficking; it did not mention firearms. After obtaining the warrant, the officers searched the house and seized the handgun seen by the officers earlier. They also found other guns, marijuana, and prescription medication. At the conclusion of the suppression hearing, the district court gave an oral ruling, which concluded that the evidence was “insufficient to justify a conclusion that the officers thought someone else was in the house.” Hence, they could not rely on the “public safety” exception to the warrant requirement for their protective sweep. Second, it held that the government’s contention that the officers could enter defendant’s home under the “community caretaker exception” was misplaced. Although the victim had personal items in defendant’s house, more was needed for them to conduct a warrantless search. Because neither exception to the warrant requirement applied, the officers’ sighting of a pistol “in plain view” while inside the house could not be used to establish probable cause for a warrant. Despite this fact, the district court denied the motion to suppress on these grounds: The Court finds that even if we excise the reference in the affidavit to the officer having seen the Derringer, if that sentence is completely eliminated from the affidavit, there is still sufficient probable cause stated in the affidavit to justify a warrant. The affidavit says that Ms. Crowder had gone there to purchase drugs, which she had done previously. The affidavit says that the officers saw marijuana, cocaine, packaged in multiple separate baggies, Oxycontin, drug paraphernalia, and a state of Tennessee cosmetology license issued to Mr. Estes with the illegal drugs that was [sic] concealed outside the residence under Mr. Estes’ vehicle. It’s my ruling that that was in plain view. The officers had a right to be in that driveway. And it’s apparent from the photographs that an officer in the driveway could clearly see those items in plain view without opening the trunk or without opening a car door or without opening a shed door. Any officer could have easily seen those. Even if" }, { "docid": "23096185", "title": "", "text": "have left the premises without searching the trailer and without arresting Herrold since they had information that Herrold, who was known to them as a drug dealer with a record of convictions for violent crimes, had obtained a large quantity of cocaine some of which he sold to the informant. The clear inference from the facts known to the officers was that the remaining cocaine after the informant’s modest purchase was in the trailer. In addition, the informant had advised them that Herrold had a gun. Furthermore, the evidence demonstrated that the police intended to obtain a warrant after the controlled buy but did not do so because Herrold was leaving the premises. Accordingly, we are certain that if the police had not made their original warrantless entry, they would have arrested Herrold if he left the trailer, an act which Herrold concedes would have been lawful, and, in any event, would have sought the warrant to search the trailer. We therefore reject as clearly erroneous the conclusion by the district court that it was speculative as to whether the police would have obtained a warrant to search the trailer absent the original entry. Furthermore, it is obvious that the affidavit for the warrant contains sufficient probable cause apart from information the officers learned via the original entry. For example, it reflects that the surveillance team searched the confidential informant and his automobile and found them free of drugs. It notes that the surveillance team observed the informant purchase drugs from Herrold and saw Herrold enter his trailer home after the sale. It also states that Hill performed a field test on the drugs, which tested positive for the presence of cocaine. There is thus a clear inference that there was cocaine in the trailer. The district court, relying principally on one sentence in the plurality’s decision in Murray, suppressed the evidence. The district court observed that, under Murray, a warrant will not be deemed to have been validly executed “if the agents’ decision to seek the warrant was prompted by what they had seen during their initial entry, or" }, { "docid": "11385586", "title": "", "text": "and find no language to support Dr. Ford’s argument. Indeed, Silvestri rejected a bright line rule in favor of a flexible analysis. [In] [t]he situation where a warrant is obtained after a warrantless search ... the requirement of active pursuit could be viewed as ensuring the independent inevitability of the police decision to seek the search warrant, i.e., to ensure that the evidence turned up in the illegal search did not influence this decision. As a protection of the independence of the warrant, however, this bright-line rule goes too far. Silvestri, 787 F.2d at 745. However, Silves-tri did require “that probable cause be present prior to the illegal search [to ensure] both independence and inevitability for the prewarrant search situation.” Id. at 746. The existence of independent probable cause to search Dr. Ford’s home is undisputed. Dr. Ford concedes that “it is beyond argument that the agents had probable cause to search Dr. Ford’s residence after he returned with the package from the Post Office.” Aplt.’s Br. at 10. It is also beyond dispute that the seized evidence would have been (and was) discovered following the authorized search. It is inevitable that the existence of probable cause would find fruition in the issuance of a search warrant. This is bolstered by the fact that there is evidence in the record, relied upon by the district court, that a decision to seek a warrant had been made prior to the warrantless entry. “Loftus then asked Ford whether Ford would consent to a search of his house, informing Ford that the search would take place in any case after the officers obtained a warrant.” Aplt.’s App. at 17. Thus, we believe that a reasonable view of the evidence supports the district court’s finding that the probable cause supporting the search warrant was independent of the warrantless search and that the evidence seized would have been discovered upon the issuance of a warrant. B. The Inclusion of Tainted Information Dr. Ford argues that the search warrant cannot be considered independent because the search warrant affidavit included observations made during the warrantless search of" }, { "docid": "23561526", "title": "", "text": "defendant ready to toss the white purse from the balcony at the rear of the apartment. After the defendant refused to stop, Bloemker saw him reenter the apartment with the white purse. Phillips saw the defendant in the hallway next to the open clothes chute, and after Bloemker told of the incident on the balcony, the white purse could not be immediately seen. The arrest of Vales and the seizure of the heroin paraphernalia in plain view followed. At this point, one of the practical considerations was to find the white purse that probably contained nar-. cotíes. The officers could have obtained a search warrant, however the defendant was not under arrest and could have removed or destroyed the white purse. The delay in obtaining a search warrant could certainly have been fatal. Therefore, the question is whether the facts in this case constitute an exceptional circumstance that allowed the warrantless search of the basement. Before the search of the basement and seizure of the white purse, the officers did not have probable cause to arrest the defendant. However, the failure to find and seize the white purse would have lead to a situation in which possible “evidence or contraband was threatened with removal or destruction. . . . ” Johnson v. United States, 333 U.S. 10, 15, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). Gaines v. Craven, 448 F.2d 1236 (9th Cir. 1971), is factually similar to this case. In Gaines, the defendant was confronted in a hallway of an apartment by officers who had an unconfirmed tip that narcotics were being sold there. The officers had neither a search nor arrest warrant. The defendant tossed a package through the apartment’s open door and the police rushed into the open apartment and seized the package, which was later found to contain heroin. The Ninth Circuit upheld the warrantless entry of the apartment on the reasoning that “the package would be destroyed if he [the officer] did not take immediate action.” Gaines v. Craven, supra at 1237. Similarly, the officers in this case had to find the white purse" }, { "docid": "14201703", "title": "", "text": "WOLLMAN, Circuit Judge. Chuck Dwain Templeman appeals from his conviction and sentence. We affirm. I. Pursuant to a search warrant, postal inspectors intercepted and opened an Express Mail package addressed to Dwight Stowe. Inside the package was another envelope, and inside that envelope was a magazine with two plastic bags of cocaine inside it. Officers confronted Stowe after he picked up the package. Stowe informed the officers that the package was for Tem-pleman. Stowe agreed to take part in a controlled delivery of the package to Tem-pleman’s trailer home. The officers enclosed within the package a “beeper,” a device which emitted a signal if the package was opened, and substituted corn starch for most of the cocaine. Stowe delivered the package to Temple-man. Stowe also carried into Templeman’s trailer a triple-beam scale inside a vinyl case. When the beeper went off, indicating that the package had been opened, the officers entered Templeman’s trailer without a search warrant. The officers asked Templeman to consent to a search of the trailer, but he refused. The officers then applied for a warrant, relying upon, among other things, items that they had seen while in the trailer. A magistrate issued the warrant. Templeman was indicted for three crimes: conspiracy to distribute cocaine, possession of cocaine with intent to distribute, and use of the mail to distribute cocaine. He pleaded guilty to the conspiracy charge, conditioned on the outcome of his appeal of the district court’s refusal to suppress evidence seized in the trailer. The district court sentenced Templeman to sixty-three months’ imprisonment. On appeal, Templeman challenged the admission of items seized from his residence. United States v. Templeman, 938 F.2d 122 (8th Cir.1991) (Templeman I). We held that the officers’ original entry into the trailer was not justified because there were no exigent circumstances. We therefore remanded the case to the district court so that it might consider whether “the officers presented sufficient evidence not seized during the initial, illegal entry to support the issuance of the warrant.” Id. at 125. “If not,” we held, “then the government may not use against Temple-man any" }, { "docid": "11591380", "title": "", "text": "a warrant merely because the officers had probable cause and could have inevitably obtained a warrant would completely obviate the warrant requirement of the fourth amendment.” United States v. Young, 573 F.3d 711, 723 (9th Cir.2009) (citation omitted). Put differently, allowing the government to claim admissibility under the inevitable discovery doctrine when officers have probable cause to obtain a warrant but fail to do so would encourage officers never to bother to obtain a warrant. The independent source rule, by contrast, does not create this incentive. As the Supreme Court has explained, a rational officer who.already has probable cause to obtain a search warrant will ordinarily not enter the premises 'without a warrant because “his action would add to the normal burden 'of convincing a magistrate that there is probable cause the much more onerous burden of convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers’ decision to seek a warrant or the magistrate’s ■ decision to grant it.” Murray, 487 U.S. at 540, 108 S.Ct. 2529. The officers here knew they had probable cause, to arrest Lundin. Deputy Aponte received corroborated information from two witnesses that hours earlier Lun-din had committed numerous violent felonies. Aponte therefore requested Lun-'din’s arrest under California Penal Code § 836. However, the officers who arrived at Lundin’s home had no right, absent an arrest warrant, to arrest Lundin in his home, or, absent a search warrant, to search his home. Payton, 445 U.S. at 589-90, 100 S.Ct. 1371. The officers nonetheless failed to obtain any warrant before coming onto Lundin’s porch and knocking on his door with the intention of.arresting him. Thus, the district court correctly held that the inevitable discovery exception to the exclusionary rule does not apply. Indeed, it would have erred had it held to the contrary. See Reilly, 224 F.3d at 995 (“[T]he district court committed clear error in applying the inevitable discovery doctrine based on the agents’ actual but unexercised opportunity to secure a search warrant.”). , Conclusion. For- the foregoing reasons, we affirm the district court’s grant of Lundin’s" }, { "docid": "22220304", "title": "", "text": "One of the packages was opened and found to contain a large quantity of watches with radium-treated dials. The opened package was resealed, and the three packages were flown to New York City. By prearrangment, customs agents met the plane on arrival in New York City, and maintained a constant surveillance of the packages until they were claimed three weeks later. Several persons were arrested. The day following the New York arrests appellant was arrested in his Los Angeles office. I Appellant contends that the walls of his apartment were “penetrated” and his apartment was searched by means of the scintillation detector in violation of his Fourth Amendment rights, and that it was error to admit evidence obtained in this way. The agents entered the apartment building through an unlocked public entrance. They employed the scintillator in public hallways outside appellant’s apartment. Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), is controlling authority that appellant’s Fourth Amendment rights were not violated. See also On Lee v. United States, 343 U.S. 747, 752-754, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). II Appellant asserts that opening the packages at Los Angeles International Airport and inspecting their contents was an unconstitutional search. 1. The officers had no warrant, and there were no circumstances which might have justified a search without one. No arrest was made to which a search without a warrant might be incident. The government made no showing that the packages might be removed before a warrant could be obtained. Appellant was not threatening to remove them, nor was the airline, except under such conditions as the officers saw fit to impose. From the time appellant left the packages with the carrier in Los Angeles they were subject to the effective control of the customs agents. There was nothing to prevent the agents from securing a warrant on a proper showing, either before the packages were shipped from Los Angeles or after they arrived in New York. On this record, search without a warrant was not justified even if the customs agents had probable cause" }, { "docid": "3658768", "title": "", "text": "Third, the parcel emanated an odor of coffee, a common masking agent. At 9:15 a.m., Officer Todd confiscated the suspicious package and left his business card with the FedEx employee who had provided access to the hold room. He then locked the package in his John Wayne Airport office and attempted to locate the sender’s address. He determined that the sender’s address on the package was fictitious. Based on an affidavit containing these facts, an Orange County Magistrate Judge issued a search warrant for the package that same day at 11:40 a.m. Nothing in the record suggests that the package was ever returned to FedEx in Orange County. The package did indeed contain narcotics. The Orange County Sheriffs De partment sent the package to drug enforcement authorities in Hawaii. They obtained anticipatory search warrants. An undercover officer in the guise of a FedEx driver made a controlled delivery of the package to Hoang. Hoang accepted and opened the package. He then unpacked the pseudo-drugs that had been substituted for the methamphetamine. He was subsequently arrested and was indicted on November 9, 2004. Hoang moved to suppress the evidence obtained or derived from the seizure and search of the package as having been obtained in violation of the Fourth Amendment. He made claims relating to both search and seizure. He asserted that there was no reasonable suspicion to support detaining the package initially; the inspector’s confiscation was a seizure unsupported by probable cause; and the initial random search lacked individualized suspicion. He also claimed that the dog' sniff was an illegal search. The government conceded that the selection of which packages to subject to a dog sniff was not supported by any reasonable, articulable suspicion. The district court denied the motion to suppress and Hoang pled guilty to possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846, subject to the outcome of this appeal. II. DISCUSSION “We review de novo the denial of a motion to suppress. Whether the exclusionary rule applies to a given case is reviewed de novo, while the underlying factual findings" }, { "docid": "7065316", "title": "", "text": "addition, the fact that the police pushed the door open as You tried to shut it constituted a show of force. Finally, when You gave his permission to conduct a search, he was facing six agents who were either standing inside his apartment or outside in the hallway. Under such conditions, the officers lacked any reasonable basis to believe that You’s consent was not the product of implied duress or coercion. See Garcia, 56 F.3d at 423. You’s consent to the search was anything but “the product of an essentially free and unconstrained choice.” Schneckloth, 412 U.S. at 225, 93 S.Ct. 2041. Y. CONCLUSION The arrest of You and subsequent search of his home is precisely the type of “mistakenly over-zealous” conduct of which courts have repeatedly warned. Coolidge, 403 U.S. at 481, 91 S.Ct. 2022. I have no doubt that these agents were well-intentioned in apprehending those who smuggle illegal aliens into this country as well as in protecting the young woman who had been separated from her relatives. See Tr. at 40. But it was reasonably practicable here for the agents to obtain an arrest warrant and the officers erred by not giving that option more consideration. Because the agents had probable cause to believe that You had committed a felony, obtaining an arrest warrant would have been relatively easy. The agents also had informants surveying You’s movements, so there was no fear that You might escape. Given that the agents had followed him throughout the day, there was obviously no pressing need to arrest You at that moment. But, instead of securing a warrant, the agents forcibly entered his home to effectuate an arrest and then decided to conduct a search — these actions are unconstitutional and require suppression of any evidence that was seized. For the reasons set forth above, the motion to suppress is therefore granted. SO ORDERED: . The testimony by Agents Morris and Florvil contradict each other on this point. Agent Morris testified that \"[v]ery shortly after we arrived there, we saw Mr. You come walking out of 60 Henry Street carrying packages.”" }, { "docid": "11841415", "title": "", "text": "of the law before searching two packages mailed from Jamaica. In addition, appellant Gaza contends that the district judge improperly concluded that there was probable cause for his warrantless arrest. Appellant Gaza also contends that the district judge abused his discretion by summarizing the contentions of the parties in his instructions to the jury. Finally, appellants contend that, since the special parole provision, 21 U.S.C. § 960(b)(1), neither designates a maximum term nor restricts a trial judge’s power to punish parole violations, it is an unconstitutional denial of due process. Since we find all contentions of appellants without merit, we affirm the judgments of conviction as well as the imposition of the special parole terms ordered by the district court. The Facts On June 1, 1983, two packages containing carved wooden heads and other items arrived at the Miami, Florida post office from Jamaica. The packages were addressed to Robert Glasser and Daniel Tomko, both Pennsylvania residents. The return addresses indicated they were sent by a “Devon Reynolds” of Negril, Jamaica. Both packages were inspected by a mail technician in the United States Customs Service’s Foreign Mail Division in Miami, Florida. The mail technician, as part of her inspection, opened the packages, removed the wooden heads and drilled a small hole in the back of each head. A black, oily substance, later determined to be hashish oil, was found inside. The local Drug Enforcement Administration (DEA) office in Miami was notified, took possession of the heads, and arranged for a controlled delivery of the packages with the aid of the Pittsburgh postal authorities. Pursuant to a court order, an electronic transmitter was installed inside the wooden heads so that DEA officials would be alerted when the heads were opened. On June 14, 1983, the package addressed to Robert Glasser was delivered to his residence. At that time, DEA agents, with a warrant to search Glasser’s home, were conducting surveillance of his home, but did not have a working receiver to detect the signal from the transmitter. Shortly after the package was delivered, appellant Gaza drove to Glasser’s house in his" } ]

[ { "docid": "23558756", "title": "", "text": "be “bleeding profusdely [sic ] to get medical attention” while in the management cells. (Appellant’s Brief at 3.) II. An in forma pauperis complaint may be dismissed as frivolous if it lacks an arguable basis in law or fact. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997). “A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.” McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.1997) (internal quotation omitted). We review the lower court’s decision to dismiss under § 1915 for abuse of discretion. See Siglar, 112 F.3d at 191. The lower court may abuse its discretion by\" providing insufficient opportunity for the plaintiff to develop his claims. See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.1994). III. The magistrate judge held that Davis’s claim for psychological damages must meet the Prison Litigation Reform Act’s requirement of physical injury: “No federal civil action may be brought by a prisoner ... for mental or emotional injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). We have maintained a distinction between an underlying Eighth Amendment claim and a claim for emotional suffering. See Siglar, 112 F.3d at 193-94. Nevertheless, this court may affirm a judgment upon any basis supported by the record. See Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir.1992). The magistrate judge did not abuse his discretion in developing or dismissing Davis’s complaint because Davis’s claims did not rise to an Eighth Amendment violation. This is quite a different thing from saying that the magistrate judge has a duty to interrogate the pro se plaintiff in such a way as to exhaust conceivable causes of action. The magistrate judge has no such duty. Instead, the Spears procedure affords the plaintiff an opportunity to verbalize his complaints, in a manner of communication more comfortable to many prisoners. But the plaintiff remains the master of his complaint and is, in the end, the person responsible" } ]

[ { "docid": "12526262", "title": "", "text": "Cordero, 993 So.2d 203, 206 (La.2008). In its decision, on a writ application filed by a prisoner affected by the alleged constitutional violations of the Louisiana Fifth Circuit Court of Appeal, the Louisiana Supreme Court adopted the court of appeal’s resolution. Cordero, 993 So.2d at 205. In his complaint, Severin claimed that he was denied his constitutional rights by the failure of the judges and employees of the Louisiana Fifth Circuit Court of Appeal to follow the applicable provisions of state law when denying his pro se post-conviction writ application. State v. Seve-rin, No. 06-KH0305 (La.App. 5th Cir. May 1, 2006). He does not allege that he sought relief pursuant to Cordero. In his report and recommendation, the magistrate judge recommended that all of Seve-rin’s claims against the judges and employees of the Louisiana Fifth Circuit Court of Appeal be dismissed as frivolous, for failure to state a claim on which relief may be granted, and/or for seeking monetary damages against defendants who are immune from such relief. The district court adopted the magistrate judge’s report and recommendation. II. DISCUSSION A. Standard of Review A prisoner’s civil rights complaint should be dismissed if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(l). We review a district court’s § 1915A dismissal de novo. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.1998). A complaint brought by a prisoner proceeding informa pauperis may also be dismissed as frivolous when it lacks an arguable basis in law or fact. 28 U.S.C. § 1915(e)(2)(B)(i); Hutchins v. McDaniels, 512 F.3d 193, 195 (5th Cir.2007). Such dismissals are reviewed for abuse of discretion. Berry v. Brady, 192 F.3d 504, 507 (5th Cir.1999). Because the magistrate judge referred to both § 1915A and § 1915(e) when he recommended dismissing Severin’s suit as frivolous, the court will review the issues raised on appeal de novo. Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.2003). To avoid dismissal for failure to state a claim, a plaintiffs complaint must plead enough facts to “state a claim to" }, { "docid": "22184574", "title": "", "text": "because it lacked an arguable basis in law. He did not specifically address the Eighth Amendment claim. The distinct court adopted the report and recommendation and dismissed the complaint as frivolous. III. A district court may dismiss as frivolous the complaint of a prisoner proceeding in forma pauperis if it lacks an arguable basis in law or fact. See Denton v. Hernandez, 504 U.S. 25, 31-32, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir.1998); see also 28 U.S.C. § 1915(e)(2)(B)® (allowing dismissal of in forma paupens action if frivolous). “A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir.1998) (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.1997)). We review the dismissal of a frivolous complaint for abuse of discretion. See Denton, 504 U.S. at 33-34, 112 S.Ct. 1728; Davis, 157 F.3d at 1005. A. The court did not abuse its discretion in dismissing Harper’s claim as it relates to his classification. “Inmates have no protectable property or liberty interest in custodial classifications.” Whitley v. Hunt, 158 F.3d 882, 889 (5th Cir.1998). Indeed, “absent exigent circumstances, administrative segregation as such, being an incident to the ordinary life of a prisoner, will never be a ground for a constitutional claim because it simply does not constitute a deprivation of a constitutionally cognizable liberty interest.” Martin v. Scott, 156 F.3d 578, 580 (5th Cir.1998) (quotation omitted). Because Harper relies on a legally nonexistent interest, any alleged due process or other constitutional violation arising from his • classification is indisputably meritless. B. The district court did not address the Eighth Amendment claim; rather, it simply dismissed the complaint, including that claim, as frivolous. We can affirm on any basis supported by the record. See Davis, 157 F.3d at 1005. We affirm the dismissal of Harper’s complaint as frivolous insofar as he seeks damages for his emotional suffering that resulted from" }, { "docid": "22801551", "title": "", "text": "1915(e)(2)(B)(i) and (ii) to require a district court “to dismiss [an] in forma pau-peris (IFP) prisoner civil rights suit[] if the court determines that the action is frivolous or malicious or does not state a claim upon which relief may be granted.” Black v. Warren, 134 F.3d 732, 733 (5th Cir.1998) (citing Mitchell v. Farcass, 112 F.3d 1483, 1489-90 (11th Cir.1997)). This court reviews dismissals based on section 1915(e)(2)(B)(ii) under the same de novo standard of review applicable to dismissals made pursuant to Federal Rule of Civil Procedure 12(b)(6). See Black, 134 F.3d at 734. “A district court’s dismissal of a complaint under this subsection may be upheld only if, taking the plaintiffs allegations as true, it appears that no relief could be granted based on the plaintiffs alleged facts.” Bass v. Parkwood Hosp., 180 F.3d 234, 240 (5th Cir.1999) (citing Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.1998)). Under section 1915(e)(2)(B)(i), a district court may dismiss as frivolous a prisoner’s IFP complaint if it lacks any arguable basis in law or fact. See Neitzke v. Williams, 490 U.S. 319-325, 109 S.Ct. 1827, 104 L.Ed.2d 338(1989); Harper v. Showers, 174 F.3d 716, 718 (5th Cir.1999); McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir.1998). “A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges violation of a legal interest which clearly does not exist.” Harper, 174 F.3d at 718 (quoting Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir.1998)); see also Spicer v. Collins, 9 F.Supp.2d 673, 687 (E.D.Tex.1998) (dismissing an inmate’s claim that he was denied one meal and forced to work on an empty stomach). A complaint is factually frivolous when “the facts alleged are ‘fantastic or delusional scenarios’ or the legal theory upon which a complaint relies is ‘indisputably merit-less.’ ” Eason v. Thaler, 14 F.3d 8,9 n. 5 (5th Cir.1994) (quoting Neitzke, 490 U.S. at 327-28, 109 S.Ct. 1827). In an action under section 1915, a district court may raise the defense of limitations sua sponte. See Gartrell v. Gaylor, 981" }, { "docid": "23162675", "title": "", "text": "standard applicable to dismissals under Federal Rule of Civil Procedure 12(b)(6). Black v. Warren, 184 F.3d 732, 733-34 (5th Cir.1998). Under that standard, a complaint fails to state a claim upon which relief may be granted when it does not contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quotation omitted). Allegations of pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). B. Analysis “To plead a constitutional claim for relief under § 1983, [a plaintiff must] allege a violation of a right secured ... by the Constitution or laws of the United States and a violation of that right by one or more state actors.” Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir.1994). Under 28 U.S.C. § 1915(e)(2)(B)(i) & (ii), the district court shall dismiss an IFP complaint at any time if it determines that the complaint is frivolous or malicious or fails to state a claim upon which relief may be granted. See Jones v. Bock, 549 U.S. 199, 202, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (holding that Prison Litigation Reform Act mandates early judicial screening of prisoner complaints). “A complaint is frivolous if it lacks an arguable basis in law or fact. A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Berry, 192 F.3d at 507 (quotations omitted). “A complaint lacks an arguable basis in fact if, after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless.” Id. (quotation omitted). Under the Eighth Amendment, conditions of confinement in state prisons must be “humane” and “must not involve the wanton and unnecessary infliction of pain.” Palmer v. Johnson, 193 F.3d 346, 351-52 (5th Cir.1999) (quoting" }, { "docid": "23214756", "title": "", "text": "hair because his great spirit told him not to mutilate his hair. In January 2005, Longoria told prison officials, that, due to his religious beliefs, he would not cut his hair. In response to his grievance, Longoria was informed that the Chaplaincy Department could not authorize him an exemption to the grooming policy. According to Longoria, he was disciplined for violating the grooming policy, by which all inmates in the Robertson Unit are required to abide. The district court granted Longoria leave to proceed in forma pauperis, and a magistrate judge conducted the Spears hearing. Without requiring defendants to answer, the district court dismissed Lon-goria’s claim as frivolous and for failure to state a claim, citing 28 U.S.C. §§ 1915 (governing proceedings in forma pauper-is), 1915A (governing screening of prisoner complaints against governmental entities), and 42 U.S.C. § 1997e(c) (governing dismissal of frivolous actions by prisoners). The district court granted Longoria permission to proceed in forma pauperis on appeal, which he pursues pro se. II. The dismissal of a complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)© is reviewed for abuse of discretion. E.g., Harper v. Showers, 174 F.3d 716, 718 & n. 3 (5th Cir.1999) (citations omitted). On the other hand, dismissals under 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A, and 42 U.S.C. 1997e(c)(l) are reviewed de novo. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.1998); Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.1998). Because the district court referred to all of these statutes in dismissing Longoria’s action, the issues at hand are reviewed de novo. See Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.2003). A. Longoria fails to contend defendants violated his rights under the Free Exercise Clause of the First Amendment. His brief provides only cursory reference to the First Amendment in the “Statement of Subject Matter Jurisdiction” and in the “Statement of the Proceedings”, and these references merely refer to what he alleged in district court. Although we liberally construe pro se briefs, such litigants must still brief contentions in order to preserve them. See Yohey v. Collins, 985 F.2d 222, 224-25" }, { "docid": "22103864", "title": "", "text": "PER CURIAM: Plaintiff-Appellant Robert G. Hart, Texas prisoner #769108, appeals from the district court’s order granting the defendants’ motion for summary judgment and dismissing his 42 U.S.C. § 1983 civil rights complaint for failure to state a claim on which relief can be granted. We granted Hart leave to proceed in forma pauperis (“IFP”) after the district court had certified that his appeal was not taken in good faith. Hart asserted that the defendants retaliated against him for exercising his First Amendment right to file a grievance and to complain to a prison administrator about the alleged misconduct of defendant Hair-ston. He alleged that, only days after making such complaints, Hairston filed a disciplinary report against Hart charging him with “knowingly making false statements for the purpose of harming another person.” Hart maintained that defendant Thomas accepted the disciplinary charge, that he was convicted in a disciplinary proceeding over which defendant Craig presided, and that he was punished with 27 days of commissary and cell restrictions. Section 1915(e)(2)(B)(ii), Title 28, permits a district court to dismiss a prisoner’s IFP complaint “at any time if the court determines that — (B) the action or appeal — ... (ii) fails to state a claim on which relief may be granted!)]” We review a 28 U.S.C. § 1915(e)(2)(B)(ii) dismissal de novo, applying the standard used for Fed. R. Civ. P. 12(b)(6). Black v. Warren, 134 F.Sd 732, 734 (5th Cir.1998); see Harper v. Showers, 174 F.3d 716, 718 n. 3 (5th Cir.1999). “To test whether the district court’s dismissal under § 1915[ (e)(2)(B)(ii) ] was proper, this Court must assume that all of the plaintiffs factual allegations are true.” Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.1998). “The district court’s dismissal may be upheld, ‘only if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations.’ ” Id. (citation omitted). To the extent that the district court’s order was based on the evidentiary submissions of the parties, we review de novo that court’s order granting a party’s summary-judgment motion. Whittaker v." }, { "docid": "23214757", "title": "", "text": "U.S.C. § 1915(e)(2)(B)© is reviewed for abuse of discretion. E.g., Harper v. Showers, 174 F.3d 716, 718 & n. 3 (5th Cir.1999) (citations omitted). On the other hand, dismissals under 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A, and 42 U.S.C. 1997e(c)(l) are reviewed de novo. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.1998); Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.1998). Because the district court referred to all of these statutes in dismissing Longoria’s action, the issues at hand are reviewed de novo. See Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.2003). A. Longoria fails to contend defendants violated his rights under the Free Exercise Clause of the First Amendment. His brief provides only cursory reference to the First Amendment in the “Statement of Subject Matter Jurisdiction” and in the “Statement of the Proceedings”, and these references merely refer to what he alleged in district court. Although we liberally construe pro se briefs, such litigants must still brief contentions in order to preserve them. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993). This court “will not raise and discuss legal issues that [Longoria] has failed to assert”. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987) (citations omitted). Therefore, Longoria has abandoned any First Amendment claim. (In any event, our court has held the grooming policy challenged by Longoria not violative of the Free Exercise Clause. See Green v. Polunsky, 229 F.3d 486, 489-91 (5th Cir.2000) (applying Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)); see also Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir.2001) (per curiam).) B. As noted, Longoria maintains the district court erred in dismissing his claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-l(a). RLUIPA is not cited in Longoria’s prisoner form complaint, which alleged a general violation of his “freedom to exercise [his] religious tenets in conformity with [his] religion” and his “right to practice [his] religion as a Mexica Nahua Native American”. Complicating matters, the recording for Longoria’s Spears hearing is inaudible. Such" }, { "docid": "22184579", "title": "", "text": "Eason has signed what is entitled the \"Appellants’ Brief,\" he did not file a notice of appeal, so he is not an appellant, and we do not consider his arguments. . Neither the magistrate judge nor Harper raised the Eighth Amendment issues. Harper did request to read his complaint aloud to ensure that he did not forget anything. The magistrate judge denied the request. . We recently reviewed a dismissal under both § 1915(e)(2)(B)(i) and (ii) de novo. See Moore v. Carwell, 168 F.3d 234, 236 (5th Cir.1999). Bui the de novo standard applies only to dismissals for a failure to state a claim on which relief may be granted pursuant to § 1915(e)(2)(B)(ii). See Black v. Warren, 134 F.3d 732, 734 (5th Cir.1998) (applying de novo review to § 1915 (e) (2) (B )(ii) and abuse of discretion review to § 1915(e)(2)(B)(i)). Here, the court dismissed the action as frivolous, which places the dismissal under § 1915(e)(2)(B)(i). Our earlier holdings applying abuse of discretion to such dismissals control. See, e.g., id.; Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997) (reviewing dismissal of claim as frivolous for abuse of discretion); McCormick, 105 F.3d at 1061 (same); see also, e.g., Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 337-339 & n. 14 (5th Cir.1999) (noting that when panel opinions are in conflict, the earlier one controls). . See also Sandin v. Conner, 515 U.S. 472, 485, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (finding no liberty interest in prisoner’s administrative segregation absent atypical, significant deprivation); Luken v. Scott, 71 F.3d 192, 193 (5th Cir.1995) (following Sandin); Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir.1988) (finding no protectable interest in custody classification). . See 42 U.S.C. § 1997e(e) (\"No federal civil action may be brought by a prisoner ... for mental or emotional injury suffered while in custody without a prior showing of physical injury.”). . See also Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir.1999) (explaining Siglar). . See Zehner v. Trigg, 133 F.3d 459, 462 (7th Cir.1997) (agreeing that prisoner who cannot seek damages for mental" }, { "docid": "22184578", "title": "", "text": "at 1006 (and cases cited therein). In addition, sleep undoubtedly counts as one of life’s basic needs. Conditions designed to prevent sleep, then, might violate the Eighth Amendment. Furthermore, Harper alleges frequent searches with no purpose but to harass him. The Eighth Amendment “always stands as a protection against” such “calculated harassment unrelated to prison needs.” Hudson v. Palmer, 468 U.S. 517, 530, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Finally, Harper alleges deliberate indifference on the part of prison officials regarding these conditions. In light of these allegations, we cannot say that Harper’s claim of cruel and unusual punishment is indisputably meritless. The court abused its discretion, therefore, in dismissing it as frivolous. We reverse the dismissal of the claim for declaratory and injunctive relief from this alleged Eighth Amendment violation and remand for further proceedings consistent with this opinion. In all other respects, we affirm the dismissal of the complaint as frivolous. AFFIRMED in part, REVERSED in part, and REMANDED. . Harper initially pursued the action with a co-plaintiff, H. Trent Eason. Although Eason has signed what is entitled the \"Appellants’ Brief,\" he did not file a notice of appeal, so he is not an appellant, and we do not consider his arguments. . Neither the magistrate judge nor Harper raised the Eighth Amendment issues. Harper did request to read his complaint aloud to ensure that he did not forget anything. The magistrate judge denied the request. . We recently reviewed a dismissal under both § 1915(e)(2)(B)(i) and (ii) de novo. See Moore v. Carwell, 168 F.3d 234, 236 (5th Cir.1999). Bui the de novo standard applies only to dismissals for a failure to state a claim on which relief may be granted pursuant to § 1915(e)(2)(B)(ii). See Black v. Warren, 134 F.3d 732, 734 (5th Cir.1998) (applying de novo review to § 1915 (e) (2) (B )(ii) and abuse of discretion review to § 1915(e)(2)(B)(i)). Here, the court dismissed the action as frivolous, which places the dismissal under § 1915(e)(2)(B)(i). Our earlier holdings applying abuse of discretion to such dismissals control. See, e.g., id.; Siglar v. Hightower," }, { "docid": "22333388", "title": "", "text": "PER CURIAM: Jerome Black, Texas prisoner #634349, appeals the district court’s dismissal of his civil rights claims as frivolous and for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)® & (ii). Black argues that the district court erred in dismissing his claims of due process violations during a disciplinary hearing pursuant to Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). He contends that Texas created a liberty interest by enacting certain Texas Department of Criminal Justice-Institutional Division (TDCJ-ID) procedural rules governing prison disciplinary hearings. He also argues that no evidence supported the disciplinary action taken against him. The Prison Litigation Reform Act (PLRA) amended § 1915 to require the district court to dismiss in forma pauperis (IFP) prisoner civil rights suits if the court determines that the action is frivolous or malicious or does not state a claim upon which relief may be granted. § 1915(e)(2)(B)® & (ii); see also, § 1915A(b)(l). The language of § 1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil Procedure 12(b)(6). We will therefore employ the same de novo standard to review the § 1915(e)(B)(ii) dismissal as we use to review dismissal pursuant to 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1489-90 (11th Cir.1997); accord McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997); Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir.1996). As to the dismissal pursuant to § 1915(e)(2) (B) (i), we review a determination by a district court that a case is frivolous for abuse of discretion. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997). A complaint is frivolous if it lacks an arguable basis in law or fact. Id. We have reviewed the record and find neither error nor abuse of discretion in the reasoning of the district court as to Black’s claim of a due process violation because he did not receive advanced written notice of the charge. Black v. Warren, No. 9:96-CV-359 (E.D.Tex. Oct. 28,1996). Black has not demonstrated plain error with respect to his contention, raised for the first time in this appeal, that he was deprived of" }, { "docid": "2393431", "title": "", "text": "the court determines that the action is frivolous or malicious or does not state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i) & (ii); see also, § 1915A(b)(l). The district court did not cite any authority for its dismissal of Bradley’s complaint, however, § 1915(e)(2)(B)(ii) is the most appropriate authority for the district court’s dismissal. This Court reviews the district court’s dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) de novo, applying the same standard used to review a dismissal pursuant to Fed.R.Civ.P. 12(b)(6). Black v. Warren, 134 F.3d 732, 733 (5th Cir.1998). To test whether the district court’s dismissal under § 1915 was proper, this Court must assume that all of the plaintiffs factual allegations are true. Ashe v. Corley, 992 F.2d 540, 544 (5th Cir.1993). The district court’s dismissal may be upheld, “only if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations.” McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 160 (5th Cir.1995); see also, Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (holding that a complaint can only be dismissed for failure to state a claim if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief). Accepting Bradley’s allegations as true, the district court erred in dismissing his complaint for failure to state a claim. Bradley has a valid claim to the extent' that he complains of unsanitary conditions that deprived him of basic human needs and exposed him to health risks. For conditions of confinement to rise to the level of an Eighth Amendment violation, they must be “cruel and unusual” under contemporary standards. Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society. Id. However, when the restrictions of confinement rise to a level that" }, { "docid": "22417231", "title": "", "text": "to alter or amend judgment. See Fed R. Civ. P. 59(e). The magistrate judge denied the motion, because it failed to allege any new facts or assert any different legal argument. Discussion A prisoner’s complaint against a governmental entity or an officer or employee of a governmental entity may be dismissed as frivolous, malicious, or for failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b). Dismissal of an IFP complaint on similar grounds is likewise authorized by 28 U.S.C. § 1915(e)(2)(B)(i) & (ii). A complaint is frivolous “if it lacks an arguable basis in law or fact.” Talib v. Gilley, 138 F.3d 211, 213 (5th Cir.1998). “A complaint lacks an arguable basis in law if it is based on an indisputably merit-less legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir.1999). “A complaint lacks an arguable basis in fact if, after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless.” Talib, 138 F.3d at 213. This Court reviews dismissals as frivolous for an abuse of discretion. See id. However, a dismissal for failure to state a claim upon which relief may be granted is reviewed de novo. See Black v. Warren, 134 F.3d 732, 734 (5th Cir.1998). This Court may affirm on any basis supported by the record. See Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir.1998). To aid in the determination of whether an IFP complaint is frivolous or fails to state a claim, this Court has approved the use of an evidentiary hearing or questionnaires. See Spears, 766 F.2d at 181-82. Responses to such an inquiry become part of the plaintiffs pleadings. See Eason v. Holt, 73 F.3d 600, 602 (5th Cir.1996). We must consider Berry’s response to the Spears inquiry in evaluating his claims under section 1915. I. Eighth Amendment Claims We begin by recognizing that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution.”" }, { "docid": "22361870", "title": "", "text": "S.Ct. 1999, 29 L.Ed.2d 619 (1971), and under 28 U.S.C. § 1346(a)(2). We are first confronted with the issue of which standard of review to use when reviewing a trial court’s dismissal pursuant to § 1915A. As part of the screening process of prisoner complaints under § 1915A, a trial court is directed to “dismiss the complaint, or any portion of the complaint, if the complaint — (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted ...” We are currently aware of no authority in this Circuit which has previously determined the proper standard to review appeals dismissed pursuant to this section. Unlike § 1915, § 1915A applies regardless of whether the plaintiff has paid a filing fee or is proceeding in forma pauperis (“IFP”), and also does not distinguish between dismissals as frivolous and dismissals for failure to state a claim. An IFP complaint may be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)® if it has no arguable basis in law or in fact. A dismissal under § 1915(e)(2)(B)© is reviewed for abuse of discretion, see Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997), while a dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim is reviewed under the same de novo standard as dismissals under Fed.R.Civ.P. 12(b)(6). See Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.1998). More closely analogous to § 1915A than § 1915(e) is 42 U.S.C. § 1997e(c), which directs the district court to dismiss, on its own motion or the motion of a party, “any action brought with respect to prison conditions under section 1983 ... or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility if the court is satisfied that the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief.” 42 U.S.C. § 1997e(c)(l). This Court reviews de novo a dismissal under § 1997e(e). See Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.1998). Because" }, { "docid": "2393430", "title": "", "text": "for his rash. He therefore concluded that Bradley had failed to state a cause of action cognizable under 42 U.S.C. § 1983. Bradley objected to the magistrate judge’s recommendation. He specifically objected to the findings that the prison officials corrected the problem as soon as they were made aware of it. Bradley contended that the officials were cognizant of his medical needs prior to placing him in lockdown and they allowed him to remain in unsanitary conditions despite his complaints. The district court overruled Bradley’s objection and adopted the magistrate judge’s findings and conclusions. The district court specifically found that the prison officials took immediate steps to correct the situation as soon as they were apprised of Bradley’s needs. Therefore, it held that no constitutional violation had occurred and ordered that Bradley’s complaint be dismissed for failure to state a claim. Bradley filed a timely notice of appeal. Discussion The Prison Litigation Reform Act (PLRA) amended § 1915 to require the district court to dismiss in forma pauperis (IFP) a prisoner’s civil rights suit if the court determines that the action is frivolous or malicious or does not state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i) & (ii); see also, § 1915A(b)(l). The district court did not cite any authority for its dismissal of Bradley’s complaint, however, § 1915(e)(2)(B)(ii) is the most appropriate authority for the district court’s dismissal. This Court reviews the district court’s dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) de novo, applying the same standard used to review a dismissal pursuant to Fed.R.Civ.P. 12(b)(6). Black v. Warren, 134 F.3d 732, 733 (5th Cir.1998). To test whether the district court’s dismissal under § 1915 was proper, this Court must assume that all of the plaintiffs factual allegations are true. Ashe v. Corley, 992 F.2d 540, 544 (5th Cir.1993). The district court’s dismissal may be upheld, “only if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations.” McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 160 (5th Cir.1995); see also," }, { "docid": "22184576", "title": "", "text": "the alleged cruel and unusual punishment. The Prison Litigation Reform Act requires a physical injury before a prisoner can recover for psychological damages. Relying on our Eighth Amendment jurisprudence, we have determined that the “physical injury” required by § 1997e(e) “must be more than de mini-mus [sic], but need not be significant.” Siglar, 112 F.3d at 193. Here, Harper does not allege any physical injury; in fact, he explicitly notes that he does “not claim physical abuse.” Without an allegation of a more than de minimis physical injury, this aspect of Harper’s complaint lacks any merit. The underlying claim of an Eighth Amendment violation, however, is distinct from this claim for resulting emotional damages. See Davis, 157 F.3d at 1005. Section 1997e(e) prohibits only recovery of the damages Harper seeks absent a physical injury. He also seeks a declaration that his rights have been violated, and he requests injunctive relief to end the allegedly unconstitutional conditions of his confinement; these remedies survive § 1997e(e). We must address, therefore, whether Harper states a nonfrivolous Eighth Amendment claim. “The Constitution does not mandate comfortable prisons ... but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Woods v. Edwards, 51 F.3d 577, 581 (5th Cir.1995) (internal quotations omitted). A two-part test determines whether a prisoner has established a constitutional viola tion. See Woods, 51 F.3d at 581. First, he must demonstrate the objective component of conditions “so serious as to deprive prisoners of the minimal measure of life’s necessities, as when it denies the prisoner some basic human need.” Id. (quotation omitted). Second, under a subjective, standard, the prisoner must establish that the responsible prison officials acted with deliberate indifference to his conditions of confinement. Harper alleges that the conditions of his confinement have deprived him of cleanliness, sleep, and peace of mind. These conditions include housing in filthy, unsanitary cells. Such conditions, depending on the facts, might violate the Eighth Amendment. See Davis,. 157 F.3d" }, { "docid": "22103865", "title": "", "text": "dismiss a prisoner’s IFP complaint “at any time if the court determines that — (B) the action or appeal — ... (ii) fails to state a claim on which relief may be granted!)]” We review a 28 U.S.C. § 1915(e)(2)(B)(ii) dismissal de novo, applying the standard used for Fed. R. Civ. P. 12(b)(6). Black v. Warren, 134 F.Sd 732, 734 (5th Cir.1998); see Harper v. Showers, 174 F.3d 716, 718 n. 3 (5th Cir.1999). “To test whether the district court’s dismissal under § 1915[ (e)(2)(B)(ii) ] was proper, this Court must assume that all of the plaintiffs factual allegations are true.” Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.1998). “The district court’s dismissal may be upheld, ‘only if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations.’ ” Id. (citation omitted). To the extent that the district court’s order was based on the evidentiary submissions of the parties, we review de novo that court’s order granting a party’s summary-judgment motion. Whittaker v. BellSouth Telecomm., Inc., 206 F.3d 532, 534 (5th Cir.2000). Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits filed in support of the motion, 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). The moving party bears the burden of showing the district court that there is an absence of evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets the initial burden of showing that there is no genuine issue, the burden shifts to the nonmovant to set forth specific facts showing the existence of a genuine issue for trial. Rule 56(e). “To state a valid claim for retaliation under section 1983, a prisoner must allege (1) a specific constitutional right, (2) the defendant’s intent to retaliate against the prisoner for his or her exercise of that right," }, { "docid": "22184577", "title": "", "text": "claim. “The Constitution does not mandate comfortable prisons ... but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Woods v. Edwards, 51 F.3d 577, 581 (5th Cir.1995) (internal quotations omitted). A two-part test determines whether a prisoner has established a constitutional viola tion. See Woods, 51 F.3d at 581. First, he must demonstrate the objective component of conditions “so serious as to deprive prisoners of the minimal measure of life’s necessities, as when it denies the prisoner some basic human need.” Id. (quotation omitted). Second, under a subjective, standard, the prisoner must establish that the responsible prison officials acted with deliberate indifference to his conditions of confinement. Harper alleges that the conditions of his confinement have deprived him of cleanliness, sleep, and peace of mind. These conditions include housing in filthy, unsanitary cells. Such conditions, depending on the facts, might violate the Eighth Amendment. See Davis,. 157 F.3d at 1006 (and cases cited therein). In addition, sleep undoubtedly counts as one of life’s basic needs. Conditions designed to prevent sleep, then, might violate the Eighth Amendment. Furthermore, Harper alleges frequent searches with no purpose but to harass him. The Eighth Amendment “always stands as a protection against” such “calculated harassment unrelated to prison needs.” Hudson v. Palmer, 468 U.S. 517, 530, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Finally, Harper alleges deliberate indifference on the part of prison officials regarding these conditions. In light of these allegations, we cannot say that Harper’s claim of cruel and unusual punishment is indisputably meritless. The court abused its discretion, therefore, in dismissing it as frivolous. We reverse the dismissal of the claim for declaratory and injunctive relief from this alleged Eighth Amendment violation and remand for further proceedings consistent with this opinion. In all other respects, we affirm the dismissal of the complaint as frivolous. AFFIRMED in part, REVERSED in part, and REMANDED. . Harper initially pursued the action with a co-plaintiff, H. Trent Eason. Although" }, { "docid": "22361871", "title": "", "text": "dismissal under § 1915(e)(2)(B)© is reviewed for abuse of discretion, see Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997), while a dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim is reviewed under the same de novo standard as dismissals under Fed.R.Civ.P. 12(b)(6). See Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.1998). More closely analogous to § 1915A than § 1915(e) is 42 U.S.C. § 1997e(c), which directs the district court to dismiss, on its own motion or the motion of a party, “any action brought with respect to prison conditions under section 1983 ... or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility if the court is satisfied that the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief.” 42 U.S.C. § 1997e(c)(l). This Court reviews de novo a dismissal under § 1997e(e). See Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.1998). Because the language of § 1915A tracks the language of § 1997e(c), we will therefore employ the same de novo standard to review dismissals pursuant to § 1915A. Accord McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997); Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir.1996). Because issues not briefed on appeal are waived, see S.E.C. v. Recile, 10 F.3d 1093, 1096 (5th Cir.1993) (“We liberally construe briefs in determining issues presented for review; however, issues not raised at all are waived.”), we AFFIRM the lower court’s dismissal of Ruiz’s claims for lost jewelry under the Federal Tort Claims Act, 28 U.S.C. § 2674, and 28 U.S.C. § 1346(a)(2). We also AFFIRM the district court’s dismissal of Ruiz’s FTCA claim for damages caused by his failure to receive his mail because such actions are statutorily barred. See 28 U.S.C. § 2680(b) (“The provisions of this chapter ... shall not apply to [a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matters.”); see also Sojourner T v. Edwards, 974 F.2d" }, { "docid": "22417232", "title": "", "text": "facts when necessary, the facts alleged are clearly baseless.” Talib, 138 F.3d at 213. This Court reviews dismissals as frivolous for an abuse of discretion. See id. However, a dismissal for failure to state a claim upon which relief may be granted is reviewed de novo. See Black v. Warren, 134 F.3d 732, 734 (5th Cir.1998). This Court may affirm on any basis supported by the record. See Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir.1998). To aid in the determination of whether an IFP complaint is frivolous or fails to state a claim, this Court has approved the use of an evidentiary hearing or questionnaires. See Spears, 766 F.2d at 181-82. Responses to such an inquiry become part of the plaintiffs pleadings. See Eason v. Holt, 73 F.3d 600, 602 (5th Cir.1996). We must consider Berry’s response to the Spears inquiry in evaluating his claims under section 1915. I. Eighth Amendment Claims We begin by recognizing that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987). “These protections specifically include the Eighth Amendment’s prohibition against cruel and unusual punishment.” Talib, 138 F.3d at 213. “Punishment rises to the level of cruel and unusual only if it involves an ‘unnecessary and wanton infliction of pain.’ ” Id. at 214 (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291 50 L.Ed.2d 251 (1976) (internal quotations omitted)). To establish an Eighth Amendment claim, the prisoner must demonstrate, inter alia, an objective component of conditions so serious as to deprive him of the minimal measure of life’s necessities, as when denied some basic human need. Harper, 174 F.3d at 720. Berry’s Eighth Amendment claims fail to meet this requirement. A. The Eighth Amendment requires that inmates be provided “ ‘well-balanced meal[s], containing sufficient nutritional value to preserve health.’ ” Green v. Ferrell, 801 F.2d 765, 770 (5th Cir.1986) (quoting Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir.1977)) (footnote omitted); see also Eason v. Thaler, 73 F.3d" }, { "docid": "22589146", "title": "", "text": "to 28 U.S.C. § 1915(e)(2)(B)(i) for an abuse of discretion. See Harper v. Showers, 174 F.3d 716, 718 & n. 3 (5th Cir.1999). The standard of review of dismissals under 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c)(l) is de novo. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998). Because the magistrate judge referred to all three statutes in dismissing Velasquez’ claims, we review the issues raised on appeal de novo. Velasquez contends that the compelled collection of a DNA sample from him pursuant to state statute violated his rights under the Fourth Amendment. Every circuit court to consider this issue has held that the collection of DNA samples from felons pursuant to similar statutes does not violate the Fourth Amendment. See Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th Cir.1998) (“while obtaining DNA samples implicates Fourth Amendment concerns, it is reasonable in fight of an inmate’s diminished privacy rights, the minimal intrusion involved, and the legitimate government interest in using DNA to investigate and prosecute crimes”); Rise v. Oregon, 59 F.3d 1556, 1559-62 (9th Cir. 1995) (same); Jones v. Murray, 962 F.2d 302, 306-08 (4th Cir.1992) (same); see also Roe v. Marcotte, 193 F.3d 72, 78-82 (2d Cir.1999) (compelled DNA testing valid under “special needs” exception to warrant requirement). In fight of these persuasive authorities, we hold that the magistrate judge did not err in dismissing this claim as frivolous. Velasquez contends also that the defendants violated his right to due pro cess by refusing to expunge false information from his prison record. The magistrate judge did not err in concluding that this claim does not involve a violation of a constitutional right. See Johnson v. Rodriguez, 110 F.3d 299, 308 & n. 13 (5th Cir.1997). The judgment is AFFIRMED." } ]

[ { "docid": "985501", "title": "", "text": "GBL § 349 because it was fully disclosed in the lease); Sands v. Ticketmaster-N.Y., Inc., 207 A.D.2d 687, 687, 616 N.Y.S.2d 362 (1st Dep’t 1994) (dismissing GBL § 349 claim for excessive fees because record showed Ticketmaster always disclosed the fees charged). Insurer also argues that there was no dispute as to a material fact concerning the other elements of a GBL § 349 claim. We disagree. First, Plaintiffs evidence that Insurer, as a matter of practice, misled consumers and paid insufficient sums on claims pursuant to its standard form contract “affects the public generally and, therefore, satisfies the requirements of ‘consumer-oriented’ conduct within the meaning of Section 349.” Nick’s Garage, 2015 WL 1481683, at *11-12; see Oswego, 85 N.Y.2d at 26-27, 623 N.Y.S.2d 529, 647 N.E.2d 741 (“[Plaintiffs have satisfied the threshold test in that the acts they complain of are consumer-oriented in the sense that they potentially affect similarly situated consumers.”); N. State Autobahn, Inc. v. Progressive Ins. Grp. Co., 102 A.D.3d 5, 12, 953 N.Y.S.2d 96 (2d Dep’t 2012) (describing conduct that is and is not “sufficiently consumer-oriented”). Second, Garage raised a question of material fact as to a GBL injury. As discussed above in section II.A.1, the vehicle owners were entitled to receive a sufficient amount of money to repair their vehicles to pre-loss condition, and Insurer’s alleged failure to pay sufficient sums, if proved, constitutes a sufficient injury. Third, Insurer argues that the. § 349 claims of First-Party Assignors fail because they do not allege an injury independent of their contract damages. The cases on which Insurer relies, however, do not establish such a requirement. Rather, those cases found no GBL injury “where the plaintiffs alleged damages in the amount of the purchase price of their contracts, but failed to allege that defendants had denied them the services for which they contracted.” Orlander v. Staples, Inc., 802 F.3d 289, 302 (2d Cir. 2015) (emphasis omitted) (distinguishing Spagnola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir. 2009), and Sokoloff v. Town Sports Int’l, Inc., 6 A.D.3d 185, 185, 778 N.Y.S.2d 9 (1st Dep’t 2004)). Therefore," } ]

[ { "docid": "8499434", "title": "", "text": "and thereby has violated its obligation under the Policies and New York Insurance Law and regulations to repair the Vehicles to their pre-accident condition.” Dkt. No. 25 at ¶ 27. As such, Plaintiff contends that it is entitled to damages as to that claim in the amount of $24,624.14. See id. at ¶ 28. In its second cause of action, with respect to the Third-Party Assignors, Defendant limited the costs it would cover to repair the vehicles to less than the full amount necessary to repair the vehicles to their pre-accident condition. See id. at ¶ 32. Plaintiff contends that “Defendant’s limitation of costs was a material deceptive action because it knew when it made its limitation that it was not providing the full amount necessary” and that Defendant’s failure to negotiate all elements of the specified claims was a deceptive business practice within the meaning of New York General Business Law § 349. See id. at ¶ 34. As such, Plaintiff alleges that it is entitled to damages in the amount of $18,093.04, plus attorneys’ fees, on its second cause of action. See id. at ¶ 36. In their motion for summary judgment, Defendant argues that the Court should dismiss Plaintiffs first cause of action because “it is well-settled New York law that there is no private right of action for damages caused by alleged violations of New York Insurance Law § 2610 or Regulation 64 (11 NYCRR Part 216).” Dkt. No. 59-40 at 7. Further, Defendant argues that, “as assignee of the Nationwide auto insurance policyholders in the 14 First-Party claims plaintiff acquired no enforceable rights against Nationwide beyond the rights that the Nationwide auto insurance policyholders had.” As such, Defendant argues that, “under the indisputable facts of the instant action plaintiff is not entitled as a matter of law to damages for any alleged breach of the auto insurance contracts because plaintiff cannot prove in this action ... that the policyholders/assignors suffered any loss or damage arising from any alleged breach of the auto insurance contracts, and proving the existence of damage caused by an alleged breach" }, { "docid": "16941708", "title": "", "text": "as articulated in the Complaint, alleges that Phoenix “represented that” it “would not raise the COI rates except based on certain factors stated in the Policies, and that Phoenix would not raise the cost of insurance unless it did so for all insureds in a class,” (Compl. ¶ 59), but then “punish[ed] consumers for exercising their contractual right to optimize premium payments [by increasing COI rates for policies with low accumulated policy values],” “discriminated within classes of insureds [in raising COI rates for only some],” and “increase[d] COI rates on the basis of ... unenumerated factors.” (Id. ¶ 60.) Clearly, just like under Count Two, the conduct of which Plaintiffs complain in the § 349 claim stems from Phoenix’s allegedly impermissible COI Increases. But, as discussed above in the context of that count, this is the very same conduct giving rise to the express breach of contract claim. (See id. ¶ 47 (quoted above).) It follows that two claims predicated on the same conduct are likely to involve similar injury. However, Plaintiffs save the Court time analyzing their position by actually alleging the same injury alleged in their breach of contract claim. Plaintiffs point to their allegations that “Phoenix’s deceptive conduct” caused “policyholders” either to pay higher premiums or to allow their policies to lapse, leading to lower rates of return. (Opp’n at 27 (citing Compl. ¶¶ 8, 30, 31).) However, the allegations in the Complaint to which they cite attribute these alleged injuries directly to “increasing COI rates based on accumulated policy value,” (Compl. ¶ 8), and “The first COI increase,” (id. ¶ 30), as well as the. “interest rate decrease” which also allegedly “violated the terms of the policies,” (id. ¶ 31). These are the exact causes and effects complained of in the express breach claim, (id. ¶ 47). Thus, any loss alleged in connection with Count Three cannot be unique to Count Three, but rather must stem from the alleged breach of contract (Count One). Such a duplicative injury is insufficient to give rise to a § 349 claim. Spagnola, 574 F.3d at 74. Finally, Plaintiffs allege" }, { "docid": "20583404", "title": "", "text": "and the First Department declined to find Section 349 injuries where the plaintiffs alleged damages in the amount of the purchase price of their contracts, but failed to allege that defendants had denied them the services for which they contracted. Spagnola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir.2009) (finding no injury where plaintiff “does not claim that he did not receive adequate insurance coverage or that he did not contract' for the coverage he received”); Sokoloff v. Town Sports Int’l, Inc., 6 A.D.3d 185, 778 N.Y.S.2d 9, 9 (1st Dep’t 2004) (finding payment of membership fee was not a cognizable § 349 injury where plaintiff “d[id] not claim that defendant failed to deliver the services called for in the contract”). Here, to the contrary, Plaintiff has alleged both a monetary loss stemming from the deceptive practice and the Defendant’s failure to deliver eontract-ed-for services. Defendant argues that New York courts have recognized the payment of a plaintiffs purchase price as a Section 349 injury only when the plaintiff paid a “price premium.” But there is no such rigid “price premium” doctrine under New York law. Rather, the cases on which Defendant relies all involved the purchase of consumable goods. In these cases, the issue of “price premium” was relevant because it showed that plaintiffs paid more than they would have for the good but for the deceptive practices of the defendant-sellers. See Koenig v. Boulder Brands, Inc., 995 F.Supp.2d 274, 288-89 (S.D.N.Y.2014) (finding a sufficiently-pled § 349 injury where plaintiff alleged that he would not have paid the price charged for “fat-free” milk had he known it contained fat); Lazaroff v. Paraco Gas Corp., 967 N.Y.S.2d 867, 2011 WL 9962089 (N.Y.Sup.Ct. Kings Cty., Feb. ,25, 2011) (finding a sufficiently-pled § 349 injury where plaintiff alleged that he would not have paid the price charged for a “20 pound” propane cylinder had he known it contained only 15 pounds of propane). These consumable goods cases follow .the same logic as the contract cases cited by the district court: in either situation, a plaintiff must allege that, on account of" }, { "docid": "985459", "title": "", "text": "LEVAL, Circuit Judge: Plaintiff, Nick’s Garage, Inc. (“Garage” or “Plaintiff’), appeals from the judgment of the United States District Court'for the Northern District of New York (D’Agosti-no, J.) granting summary judgment in favor of the Defendants, Progressive Casualty Insurance Company and related entities (collectively, the “Insurer”). Garage, an automobile repair shop, brought these claims as assignee of its customers against the Insurer for breach of contract and deceptive business practices under New York General Business Law (“GBL”) § 349. Garage alleges that Insurer failed to pay sufficient funds to fulfill its obligation to return the damaged vehicles to pre-accident condition, and engaged in deceptive practices in claims processing. The district court granted summary judgment in favor of Defendants, finding that there were no genuine issues of material fact, and furthermore, as to its claims of deceptive business practices, that such claims were also precluded by New York Insurance Law § 2601. We conclude that the district court erred in part in granting summary' judgment to Insurer on Garage’s breach of contract claims. Insurer failed to show its entitlement to judgment for costs relating tó labor hours, parts, labor rates, electronic database access, and hazárdbus waste removal charges, and the absence of genuine disputes of material fact on these issues. Summary judgment should have been denied for those categories. On the other hand, Insurer demonstrated its entitlement to judgment, and Garage failed to raise a genuine dispute of material fact, on Insurer’s ’payments for paint material costs; the district court properly granted summary judgment to Insurer on that category of claims. We also conclude that the district court erred in part in granting summary judgment to Insurer on Garage’s GBL claims. There is a question of material fact on Garage’s claim that Insurer engaged in deceptive practices concerning its labor rates payments, and that claim is not precluded by N.Y. Ins. Law § 2601. On the other hand,- the district court properly granted summary judgment to Insurer on Garage’s GBL claim that Insurer misled customers regarding their ability to use the repair shop of their choice. Accordingly, we affirm the judgment" }, { "docid": "985468", "title": "", "text": "F.3d 234, 236 (2d Cir. 2012) (per curiam) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)). For the court to grant summary judgment, the movant must “show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L,Ed.2d 202 (1986). The movant bears the burden of “demonstrating] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Where, as here, the burden of persuasion at trial would be on the non-moving party ... the party moving for summary judgment may satisfy his burden of production under Rule 56 in either of two ways: (1) by submitting evidence that negates an essential element of the non-moving party’s claim, or (2) by demonstrating that the non-moving party’s evidence is insufficient to establish an essential element of the non-moving party’s claim.” Farid v. Smith, 850 F.2d 917, 924 (2d Cir. 1988) (citing Celotex, 477 U.S. at 331, 106 S.Ct. 2548 (Brennan, J., dissenting)). A. Breach of Contract Garage alleges that Insurer failed to pay sufficient sums to fulfill its contractual policy obligations to cover the reasonable costs necessary to repair the damaged vehicles to their pre-loss condition. To state a claim for breach of contract under New York law, “the complaint must allege: (i) the formation of a contract between the parties; (ii) performance by the plaintiff; (iii) failure of defendant to perform; and (iv) damages.” Johnson v. Nextel Commc’ns, Inc., 660 F.3d 131, 142 (2d Cir. 2011). Insurer does not dispute that prongs (i) and (ii) have been met; 1. Damages Insurer argues that the First-Party Assignors (whose claims are asserted by Garage as their assignee) suffered no damages because their vehicles were repaired by Garage to their pre-loss condition." }, { "docid": "20583377", "title": "", "text": "LEVAL, Circuit Judge: Plaintiff Andrew Orlander, a resident and citizen of New York State, appeals from the district court’s dismissal, under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, of his claims for breach of contract and for violations of New York General Business Law (“N.Y. GBL”) Sections 349 and 350, which prohibit deception of consumers and false advertising. Defendant Staples, Inc. is a Delaware corporation that advertises, distributes, markets, and sells its Computer and Monitor Protection Plans to consumers throughout New York State. Plaintiff purchased both a computer and a two-year, $99.99 “Carry-in” Protection Plan from Staples, and brought suit, individually and on behalf of all others similarly situated, after Staples denied Plaintiff the services for which he allegedly paid. Plaintiff argues that the district court erred in finding the language of the Protection Plan Brochure (“the Contract”) to be unambiguous; in requiring Plaintiff to show a “material” breach of that contract; and in finding that the Plaintiff suffered no damages. Plaintiff also argues that the district court erred in finding that Plaintiff failed to plead an actual injury under N.Y. GBL Sections 349 and 350. Staples responds that the contract terms were unambiguous, that Plaintiff failed to allege a breach of the unambiguous contract, and that Plaintiff failed to show damages from the alleged breach. Defendant also argues that Plaintiff failed sufficiently to allege either a materially misleading practice or an actual injury under N.Y. GBL Sections 349 and 350. We conclude that Plaintiff has adequately alleged both a materially misleading practice and an actual injury under N.Y. GBL Sections 349 and 350. We also conclude, with respect to the breach of contract claim, that the district court erred in finding the Contract to be unambiguous, in requiring Plaintiff to allege a “material” breach, and in finding that Plaintiff had failed to adequately allege damages. Construing the contract’s ambiguities in Plaintiffs favor, he has alleged Staples’s failure to perform in the first year of the contract and damages in the amount of his restitution interest. Should Plaintiff seek damages beyond his restitution interest, he should" }, { "docid": "985466", "title": "", "text": "remanufactured, or used, including, but not limited to: (a) original manufacturer parts or equipment; and (b) nonoriginal manufacturer parts or equipment. Confidential App. 31-32 (emphasis omitted). For its second category of claims, Garage alleges that Insurer violated GBL § 349 by engaging in deceptive acts in handling the claims of both the First-Party Assignors and Third-Party Assignors. Specifically, Garage claims Insurer misled consumers by falsely representing to them that it was willing to pay prevailing competitive labor rates, and by misrepresenting consumers’ ability to obtain repairs at the shop of their choice. Garage originally filed this suit in New York State Supreme Court. On May 10, 2012, Insurer removed to federal court, which had diversity jurisdiction pursuant to 28 U.S.C. § 1332. On February 27, 2013, the district court granted in part Insurer’s motion to dismiss, dismissing Garage’s claims for quantum meruit and those GBL § 349 claims that were barred by the statute of limitations. Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., No. 5:12-CV-777, 2013 WL 718457 (N.D.N.Y. Feb. 27, 2013). On September 23, 2013, Garage filed an amended complaint. On March 31, 2015, the district court granted Insurer’s motion for summary judgment as to all of Garage’s claims. Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., No. 5:12-CV-777, 2015 WL 1481683 (N.D.N.Y. Mar. 31, 2015). The district court found that Garage failed to raise a genuine dispute of material fact that could support its claims that Insurer breached its contractual obligations to the First-Party assignors as to any of the categories of costs identified. Id. at *6-10. As to Garage’s GBL § 349 claims, the district court found that Garage failed to raise a genuine dispute of material fact that could support its claims that Insurer engaged in materially misleading practices, and found in the alternative that these claims were precluded by N.Y. Ins. Law § 2601. Id. at *10-15. II. DISCUSSION We review a district court’s grant of summary judgment de novo, “resolving] all ambiguities and drawing] all [reasonable] factual inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian, 680" }, { "docid": "16941707", "title": "", "text": "to allege a “loss ... independent of the loss caused by the alleged breach of contract,” Spagnola, 574 F.3d at 74. Therefore, they have failed adequately to allege injury under § 349, and the claim must be dismissed. Plaintiffs, citing no authority to support their assertions, argue that the injury alleged in their § 349 claim differs from that alleged in the breach of contract claim, because Phoenix’s alleged misconduct “immediately damaged the resale value of the policies and forced consumers to choose whether to pay higher premiums in the future or lapse their policies,” and that this harm began when Phoenix announced each COI Increase. (Opp’n at 27.) They equate their argument on this point with the breach of the implied covenant of good faith and fair dealing claim. (Id.) Plaintiffs are correct that the analyses relating to distinction from the allegations of Count One are similar. As with the implied breach claim, however, they are incorrect in their assertions that a distinction exists and that their claim should proceed. The § 349 claim, as articulated in the Complaint, alleges that Phoenix “represented that” it “would not raise the COI rates except based on certain factors stated in the Policies, and that Phoenix would not raise the cost of insurance unless it did so for all insureds in a class,” (Compl. ¶ 59), but then “punish[ed] consumers for exercising their contractual right to optimize premium payments [by increasing COI rates for policies with low accumulated policy values],” “discriminated within classes of insureds [in raising COI rates for only some],” and “increase[d] COI rates on the basis of ... unenumerated factors.” (Id. ¶ 60.) Clearly, just like under Count Two, the conduct of which Plaintiffs complain in the § 349 claim stems from Phoenix’s allegedly impermissible COI Increases. But, as discussed above in the context of that count, this is the very same conduct giving rise to the express breach of contract claim. (See id. ¶ 47 (quoted above).) It follows that two claims predicated on the same conduct are likely to involve similar injury. However, Plaintiffs save the Court" }, { "docid": "16941705", "title": "", "text": "been met, I will focus here only on the “consumer-oriented” and injury criteria. In order to qualify for § 349 liability, an act must be consumer-oriented. Id. “As shown by its language and background, § 349 is directed at wrongs against the consuming public ... To state a claim for consumer-oriented deception, a plaintiff must allege that the disputed acts or practices have a broader impact on consumers at large.” Oswego Laborers’ Local 211 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 623 N.Y.S.2d 529, 647 N.E.2d 741 (N.Y.1995). Whether conduct is “consumer-oriented” turns on several factors. Courts evaluating § 349 claims generally focus on: (i) the amounts at stake, (ii) the nature of the contracts at issue, and (iii) the sophistication of the parties. Interested Underwriters at Lloyd’s of London Subscribing to Policy # 991361018 v. Church Loans & Invs. Trust, 432 F.Supp.2d 330, 332 (S.D.N.Y.2006) (citing N.Y. Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 320-21, 639 N.Y.S.2d 283, 662 N.E.2d 763 (N.Y.1995)). None of these factors alone is dispositive. See id. Rather, these considerations as a whole are intended to ascertain whether the “disputed acts or practices have a broader impact on consumers at large.” Oswego, 85 N.Y.2d at 25, 623 N.Y.S.2d 529, 647 N.E.2d 741. A § 349 claim must also allege injury resulting from the deceptive act or practice. The legal standard governing the injury requirement under § 349 is more straightforward. The loss suffered as a result of Phoenix’s alleged breach of § 349 must be independent of the loss alleged under the breach of contract claim. Spagnola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir.2009). b. Discussion The parties understandably devote significant time and space in their papers to the consumer-orientation requirement, including arguments along each of the three factors noted above. However, § 349’s requirements are conjunctive. Exxonmobil, 328 F.Supp.2d at 447 (“a plaintiff must allege (1) a deceptive consumer-oriented act ... and (2) injury”) (emphasis added). Because, as discussed below, I dismiss Count Three on the injury ground, I need not reach the consumer-orientation arguments. Plaintiffs have failed sufficiently" }, { "docid": "11358379", "title": "", "text": "518, 521 (2d Cir.2000) (per curiam). “Deceptive practices” are “acts which are dishonest or misleading in a material respect.” Kramer v. Pollock-Krasner Found., 890 F.Supp. 250, 258 (S.D.N.Y.1995). “ ‘Deceptive acts’ are defined objectively[ ] as acts likely to mislead a reasonable consumer acting reasonably under the circumstances.” Boule v. Hutton, 328 F.3d 84, 94 (2d Cir.2003) (internal quotation marks omitted). The district court dismissed Spagnola’s claim because it failed to plead either a deceptive act or requisite injury. Although a monetary loss is a sufficient injury to satisfy the requirement under § 349, that loss must be independent of the loss caused by the alleged breach of contract. For example, in Sokoloff v. Town Sports Int’l, Inc., 6 A.D.3d 185, 778 N.Y.S.2d 9, 10 (App.Div.2004), the Appellate Division dismissed a health club member’s deceptive practice claim made against her health club. The member sought the return of her initiation fee. Id. The court held that the member did not claim a sufficient injury because she alleged no other loss besides the payment of her membership fee. Id. She did not claim that the health club failed to deliver services called for under the contract and “she never sought to cancel the contract.” Id.; see also Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 698 N.Y.S.2d 615, 720 N.E.2d 892, 897-98 (1999) (injury must be separate and distinct from the deceptive act). Here, as in Sokoloff, Spagnola does not claim that he did not receive adequate insurance coverage or that he did not contract for the coverage he received. Cf. Samuel, 809 N.Y.S.2d at 418 (requisite injury established when plaintiffs received services never contracted for). Spagnola has therefore failed to plead a sufficient injury under New York General Business Law § 349. For the foregoing reasons, we reverse the district court’s dismissal of Spagnola’s breach of contract claim and affirm thé district court’s dismissal of all other claims. We remand the case to the district court for further proceedings consistent with this opinion. . Spagnola also named as defendants various affiliated entities and persons related to Chubb. For the purpose" }, { "docid": "20583403", "title": "", "text": "sufficiently alleged an injury stemming from the misleading practice — payment for a two-year “Carry-in” Protection Plan which he would not have purchased had he known that Defendant intended to decline to provide him any services in the first year of the Contract. In finding that this allegation did not state an “actual” injury under N.Y. GBL Sections 349 and 350, the district court relied on a series of inapposite cases. See Orlander, 2014 WL 2933152, at *9 (citing New York and Second Circuit authorities). In Stutman v. Chemical Bank, 95 N.Y.2d 24, 30-31, 709 N.Y.S.2d 892, 731 N.E.2d 608 (2000), the New York Court of Appeals rejected the plaintiffs claim not because the plaintiff failed to state an injury under N.Y. GBL Section 349, but because he failed to allege a deceptive practice. Indeed, the court explained that the allegation that a deceptive practice caused plaintiff to pay a $275 fee sufficiently pled an actual injury under Section 349. See id. In the other two cases on which the district court relied, our Court and the First Department declined to find Section 349 injuries where the plaintiffs alleged damages in the amount of the purchase price of their contracts, but failed to allege that defendants had denied them the services for which they contracted. Spagnola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir.2009) (finding no injury where plaintiff “does not claim that he did not receive adequate insurance coverage or that he did not contract' for the coverage he received”); Sokoloff v. Town Sports Int’l, Inc., 6 A.D.3d 185, 778 N.Y.S.2d 9, 9 (1st Dep’t 2004) (finding payment of membership fee was not a cognizable § 349 injury where plaintiff “d[id] not claim that defendant failed to deliver the services called for in the contract”). Here, to the contrary, Plaintiff has alleged both a monetary loss stemming from the deceptive practice and the Defendant’s failure to deliver eontract-ed-for services. Defendant argues that New York courts have recognized the payment of a plaintiffs purchase price as a Section 349 injury only when the plaintiff paid a “price premium.” But" }, { "docid": "985470", "title": "", "text": "Insurer misunderstands the theory of this category of claim. Insurer was obligated to pay its insureds the “loss” on a covered vehicle, ie., the amount of money sufficient to return the vehicles to their pre-loss condition.. Thus, the difference between what Insurer paid to Garage and the amount necessary to return the vehicles to their pre-loss condition constitutes damages suffered.by the insureds on which Garage, as assignee, can bring suit. See Citibank, N.A. v. Tele/Resources, Inc., 724 F.2d 266, 269 (2d Cir. 1983). There is no merit to insurer’s contention that the First-Party Assignors suffered no damages regardless of whether Insurer paid less than the cost of returning the vehicles to pre-accident condition. The District Court properly rejected Insurer’s contention on this issue. Nick’s Garage, 2015 WL 1481683, at *6. 2. Breach The remaining question then is whether Insurer breached its' contractual obligations to its First-Party Assignor insureds. The insured bears the burden at trial of establishing the reasonable cost of the repairs necessary to bring the vehicle to its pre-loss condition. See Rizzo v. Merchants and Businessmen’s Mut. Ins. Co., 188 Misc.2d 180, 727 N.Y.S.2d 250, 252 (2d Dep’t 2001). However, on. a motion ,for summary judgment, the burden is on the movant to show that it “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Accordingly, upon Insurer’s motion for summary judgment, Insurer bears the burden of showing either that Garage lacked evidence needed to prove any element of its claims, or that the amount paid by Insurer was reasonably sufficient to repair the vehicle to its condition prior to the loss. Insurer’s motion papers were deficient in their attempt to satisfy this burden. In support of its entitlement to judgment, at times Insurer merely asserted— without support or explanation—that Garage had not produced evidence to support its claims. See, e,g., J.A. 136 (“Plaintiffs have not produced any evidence ... as to why the more expensive original manufacture parts were necessary”); Dkt. 103, at 1 n.1 (“Because Plaintiff failed to submit any admissible evidence relating to labor hour deficiencies, no material issue of" }, { "docid": "985463", "title": "", "text": "216.7(b)(1). If after such negotiations the parties cannot reach an “[a]greed price”—ie., “the amount agreed ... as the reasonable cost to repair damages to the motor vehicle resulting from the loss,” id § 216.7(a)(1)—then the insurer must send the insured a prescribed notice of rights letter, which states the insurer’s offer and indicates that, upon the insured’s request, the insurer is able to recommend a shop to perform the repairs at the stated offer price, id. §§ 216.7(b)(14)(i), 216.12. For the vehicles in the instant case, the typical interaction between Garage and Insurer proceeded as follows: Owners brought the damaged vehicles to Garage seeking an estimate on the necessary repairs; Garage inspected the vehicles and sent Insurer an estimate of the repairs Garage determined were necessary to return the vehicles to their pre-accident condition. Insurer then sent a Managed Repair Representative (“MRR”) to inspect the vehicle and provided an estimate as to the cost to repair the vehicle to pre-loss condition. Garage responded by sending Insurer a notice of deficiencies, identifying items that were omitted or insufficient in Insurer’s estimates and informing Insurer that there was no agreed upon amount for the repairs. This process was sometimes repeated with supplements if additional damage was discovered during the course of the repair. Garage would repair the vehicles after it had received the estimate from Insurer. As relevant to this appeal, Garage brings two categories of claims. For Plaintiffs first category of claims, which it brings as assignee of First-Party Assignors, Garage claims that Insurer breached its contractual obligations to the First-Party Assignors by failing to pay the amount necessary to return the vehicles to their pre-accident condition, leaving the First-Part Assignors liable to Garage for the balance of the repair cost to the extent that Garage’s charge exceeded Insurer’s payment. Garage alleges five categories of under-payments: (1) failing to allow for sufficient labor hours to make necessary repairs; (2) failing to pay for original equipment manufacturer (“OEM”) parts when the non-OEM parts suggested by Insurer were inadequate to return the vehicle to pre-accident condition; (3) paying insufficient labor rates; (4) failing" }, { "docid": "985495", "title": "", "text": "ALLDATA charges breached its contractual obligations to pay the charges necessary to return the vehicles to their pre-loss condition. ⅜ ⅜ ⅜ In sum, we conclude that summary judgment should have been denied on Garage’s breach of contract claims with respect to the cost categories of labor hour deficiencies, parts, labor rates, hazardous waste removal, and ALLDATA, but that summary judgment was properly granted on the issue of paint material costs. We also affirm the grant of summary judgment on the issues noted in footnote 11, supra, which Garage has not challenged on' appeal. B. GBL The district court also granted Insurer summary judgfeent on Garage’s claims brought under GBL § 349. :The district court found that there was no dispute as to a material fact’ on whether Insurer engaged in materially misleading conduct and that Insurer was entitled to judgment hs a ihatter of law. In the alternative, the court found thát Garagé’s GBL claims were precluded by N.Y. Ins. Law § 2601. On appeal, Garage contends that the district court erred in entering judgment on two of its claims: that Insurer misled customers about (i) its labor rate payments and (ii) customers’ ability to take their vehicles to the shop of their choice. We conclude that the district court erred in granting summary judgment on Garage’s claim that Insurer engaged in materially misleading acts with respect to its labor rate -payments, and that such claims are not precluded by N.Y. Ins. Law. However, the district court properly granted summary judgment to Insurer on Garage’s claim that Insurer misled consumers regarding their ability to use the repair shop of their choice. 1. Labor Rate Practices General Business Law § 349 makes unlawful “deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” N.Y. Gen. Bus. Law § 349(a). To state a claim for a § 349 violation, “a plaintiff.must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly" }, { "docid": "16941706", "title": "", "text": "Rather, these considerations as a whole are intended to ascertain whether the “disputed acts or practices have a broader impact on consumers at large.” Oswego, 85 N.Y.2d at 25, 623 N.Y.S.2d 529, 647 N.E.2d 741. A § 349 claim must also allege injury resulting from the deceptive act or practice. The legal standard governing the injury requirement under § 349 is more straightforward. The loss suffered as a result of Phoenix’s alleged breach of § 349 must be independent of the loss alleged under the breach of contract claim. Spagnola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir.2009). b. Discussion The parties understandably devote significant time and space in their papers to the consumer-orientation requirement, including arguments along each of the three factors noted above. However, § 349’s requirements are conjunctive. Exxonmobil, 328 F.Supp.2d at 447 (“a plaintiff must allege (1) a deceptive consumer-oriented act ... and (2) injury”) (emphasis added). Because, as discussed below, I dismiss Count Three on the injury ground, I need not reach the consumer-orientation arguments. Plaintiffs have failed sufficiently to allege a “loss ... independent of the loss caused by the alleged breach of contract,” Spagnola, 574 F.3d at 74. Therefore, they have failed adequately to allege injury under § 349, and the claim must be dismissed. Plaintiffs, citing no authority to support their assertions, argue that the injury alleged in their § 349 claim differs from that alleged in the breach of contract claim, because Phoenix’s alleged misconduct “immediately damaged the resale value of the policies and forced consumers to choose whether to pay higher premiums in the future or lapse their policies,” and that this harm began when Phoenix announced each COI Increase. (Opp’n at 27.) They equate their argument on this point with the breach of the implied covenant of good faith and fair dealing claim. (Id.) Plaintiffs are correct that the analyses relating to distinction from the allegations of Count One are similar. As with the implied breach claim, however, they are incorrect in their assertions that a distinction exists and that their claim should proceed. The § 349 claim," }, { "docid": "985465", "title": "", "text": "to pay the amount necessary for paint materials; (5) failing to pay for charges for accessing an electronic database and removing hazardous waste. , As relevant here, Insurer’s insurance policy provides: Limits of Liability 1. The limit of liability for loss to a covered auto, non-owned auto, or custom parts or equipment is the lowest of: ⅝ ⅝ ⅜ c. the amount necessary to repair the damaged property to its pre-loss condition reduced by the applicable deductible; or.... 2. Payments for loss to a covered auto, non-owned auto, or custom parts or equipment are subject to the following provisions: d. In determining the amount necessary to repair damaged property to its pre-loss condition, the amount to be paid by [Insurer]: i. will not exceed the prevailing competitive labor rates charged in the area where the property is to be repaired and the cost of repair or replacement parts and equipment, as reasonably determined by [Insurer]; and ii. will be based on the cost of repair or replacement parts and equipment which may be new, reconditioned, remanufactured, or used, including, but not limited to: (a) original manufacturer parts or equipment; and (b) nonoriginal manufacturer parts or equipment. Confidential App. 31-32 (emphasis omitted). For its second category of claims, Garage alleges that Insurer violated GBL § 349 by engaging in deceptive acts in handling the claims of both the First-Party Assignors and Third-Party Assignors. Specifically, Garage claims Insurer misled consumers by falsely representing to them that it was willing to pay prevailing competitive labor rates, and by misrepresenting consumers’ ability to obtain repairs at the shop of their choice. Garage originally filed this suit in New York State Supreme Court. On May 10, 2012, Insurer removed to federal court, which had diversity jurisdiction pursuant to 28 U.S.C. § 1332. On February 27, 2013, the district court granted in part Insurer’s motion to dismiss, dismissing Garage’s claims for quantum meruit and those GBL § 349 claims that were barred by the statute of limitations. Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., No. 5:12-CV-777, 2013 WL 718457 (N.D.N.Y. Feb. 27, 2013). On September" }, { "docid": "985494", "title": "", "text": "out by the manufacturers of the vehicle.” Id. 829. Drawing all reasonable inferences in favor of Garage, Zaleppa’s testimony could establish that, to repair properly a particular vehicle to its pre-loss condition, a technician must review the specifications and procedures provided by the vehicle manufacturer for that specific make and model vehicle. If that is the case, a jury could conclude that a technician needs to expend time to access and familiarize herself with the information provided by the database for a specific vehicle to perform a particular repair. Such efforts and costs are potentially distinguishable from those that might need to be expended generally for the operation of a business or the performance of technician work, which might properly be considered overhead and not chargeable to a particular client. Resolving the issue of how ALLDATA costs should be treated under the policy thus turns on a factual assessment of how the database operates and is used in practice. There is, therefore, a genuine dispute of material fact as.to whether Insurer’s failure to pay Garage’s ALLDATA charges breached its contractual obligations to pay the charges necessary to return the vehicles to their pre-loss condition. ⅜ ⅜ ⅜ In sum, we conclude that summary judgment should have been denied on Garage’s breach of contract claims with respect to the cost categories of labor hour deficiencies, parts, labor rates, hazardous waste removal, and ALLDATA, but that summary judgment was properly granted on the issue of paint material costs. We also affirm the grant of summary judgment on the issues noted in footnote 11, supra, which Garage has not challenged on' appeal. B. GBL The district court also granted Insurer summary judgfeent on Garage’s claims brought under GBL § 349. :The district court found that there was no dispute as to a material fact’ on whether Insurer engaged in materially misleading conduct and that Insurer was entitled to judgment hs a ihatter of law. In the alternative, the court found thát Garagé’s GBL claims were precluded by N.Y. Ins. Law § 2601. On appeal, Garage contends that the district court erred in entering" }, { "docid": "16941709", "title": "", "text": "time analyzing their position by actually alleging the same injury alleged in their breach of contract claim. Plaintiffs point to their allegations that “Phoenix’s deceptive conduct” caused “policyholders” either to pay higher premiums or to allow their policies to lapse, leading to lower rates of return. (Opp’n at 27 (citing Compl. ¶¶ 8, 30, 31).) However, the allegations in the Complaint to which they cite attribute these alleged injuries directly to “increasing COI rates based on accumulated policy value,” (Compl. ¶ 8), and “The first COI increase,” (id. ¶ 30), as well as the. “interest rate decrease” which also allegedly “violated the terms of the policies,” (id. ¶ 31). These are the exact causes and effects complained of in the express breach claim, (id. ¶ 47). Thus, any loss alleged in connection with Count Three cannot be unique to Count Three, but rather must stem from the alleged breach of contract (Count One). Such a duplicative injury is insufficient to give rise to a § 349 claim. Spagnola, 574 F.3d at 74. Finally, Plaintiffs allege that the “mere announcement” of the COI increases has damaged the Policies. (Id. ¶ 35; see also Opp’n at 27.) This does not raise a distinct injury for their § 349 claim, for two reasons. First, that this announcement “damaged the resale value of the policies and forced consumers to choose whether to pay higher premiums in the future or lapse their policies,” (Opp’n at 27), once again alleges the same nexus as the breach of contract claim, as just discussed. Moreover, as discussed in connection with Count Four above, Plaintiffs explicitly include this very theory in the express breach claim, alleging that “To the extent that Phoenix has announced, but not folly implemented, the second COI increase, Phoenix has anticipatorily breached the policies.” (Compl. ¶ 49.) In other words, the announcement is alleged as an anticipatory breach of the Policies, and cannot also be the independent injury required by § 349. To state a claim for relief under § 349, “a plaintiff must allege (1) a deceptive consumer-oriented act or practice which is misleading" }, { "docid": "20583398", "title": "", "text": "the two-year Contract. See A 13-14 (alleging the Defendant’s agents told Plaintiff that “there was no coverage from the Protection Plan until the manufacturer’s warranty expired” and that “Staples Protection Plans does not cover the first year, Staples Protection Plans covers the 2nd year when the warranty expires from the manufacturer_”). “[T]he plaintiff in a breach-of-contract action may ... elect to measure her damages by the value of the benefit the defendant has unjustly retained.” Asia Glob. Crossing, 404 B.R. at 342. Whether Defendant has in fact substantially breached the Contract and, assuming it has, the exact amount of Plaintiffs restitution interest in the breached portion of the Contract, are questions to be determined at a later stage of litigation. Furthermore, should Plaintiff seek damages beyond his restitution interest, he would be wise to amend his complaint to include particularized allegations of the losses he suffered from Staples’s refusal of services that it allegedly owed him. On remand, Plaintiff should be granted leave to so amend. II. Deceptive Practice and False Advertising Claims N.Y. GBL Section 349 prohibits “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” N.Y. GBL Section 350 prohibits “[flalse advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” To successfully assert a claim under either section, “a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 944 N.Y.S.2d 452, 452, 967 N.E.2d 675 (2012) (internal quotation marks omitted). It is undisputed that Plaintiff has met the first prong of his N.Y. GBL claims: “There is no question that the sale of Staples Protection Plans constituted ‘consumer-oriented conduct.’ ” Orlander, 2014 WL 2933152, at *8. As for the “materially misleading” prong, “[t]he New York Court of Appeals has adopted an objective definition of ‘misleading,’ under which the alleged" }, { "docid": "985469", "title": "", "text": "the non-moving party’s claim, or (2) by demonstrating that the non-moving party’s evidence is insufficient to establish an essential element of the non-moving party’s claim.” Farid v. Smith, 850 F.2d 917, 924 (2d Cir. 1988) (citing Celotex, 477 U.S. at 331, 106 S.Ct. 2548 (Brennan, J., dissenting)). A. Breach of Contract Garage alleges that Insurer failed to pay sufficient sums to fulfill its contractual policy obligations to cover the reasonable costs necessary to repair the damaged vehicles to their pre-loss condition. To state a claim for breach of contract under New York law, “the complaint must allege: (i) the formation of a contract between the parties; (ii) performance by the plaintiff; (iii) failure of defendant to perform; and (iv) damages.” Johnson v. Nextel Commc’ns, Inc., 660 F.3d 131, 142 (2d Cir. 2011). Insurer does not dispute that prongs (i) and (ii) have been met; 1. Damages Insurer argues that the First-Party Assignors (whose claims are asserted by Garage as their assignee) suffered no damages because their vehicles were repaired by Garage to their pre-loss condition. Insurer misunderstands the theory of this category of claim. Insurer was obligated to pay its insureds the “loss” on a covered vehicle, ie., the amount of money sufficient to return the vehicles to their pre-loss condition.. Thus, the difference between what Insurer paid to Garage and the amount necessary to return the vehicles to their pre-loss condition constitutes damages suffered.by the insureds on which Garage, as assignee, can bring suit. See Citibank, N.A. v. Tele/Resources, Inc., 724 F.2d 266, 269 (2d Cir. 1983). There is no merit to insurer’s contention that the First-Party Assignors suffered no damages regardless of whether Insurer paid less than the cost of returning the vehicles to pre-accident condition. The District Court properly rejected Insurer’s contention on this issue. Nick’s Garage, 2015 WL 1481683, at *6. 2. Breach The remaining question then is whether Insurer breached its' contractual obligations to its First-Party Assignor insureds. The insured bears the burden at trial of establishing the reasonable cost of the repairs necessary to bring the vehicle to its pre-loss condition. See Rizzo v." } ]

[ { "docid": "23349376", "title": "", "text": "BERZON, Circuit Judge: An Immigration Judge (IJ) determined that Roberto Ortega-Mendez’s 1998 conviction for battery under California Penal Code section 242 was a “crime of domestic violence” within the meaning of 8 U.S.C. § 1227(a)(2)(E)®. As a result, the IJ declared Ortega-Mendez ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(l) as an alien who has “been convicted of an offense under section ... 1227(a)(2).” 8 U.S.C. § 1229b(b)(l)(C). Ortega-Mendez, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals (BIA) affirming the IJ’s decision. For an offense to be a “crime of domestic violence” within the meaning of 8 U.S.C. § 1227(a)(2)(E)®, it must, inter alia, be a “crime of violence” within the meaning of 18 U.S.C. § 16. See 8 U.S.C. § 1227(a)(2)(E)®. We hold that battery under California Penal Code section 242 is not categorically a “crime of violence” within the meaning of 18 U.S.C. § 16. The government does not contend that we should reach a different result regarding whether Ortega-Mendez’s 1998 offense is a “crime of violence” under the modified categorical approach. We therefore conclude that Ortega-Mendez’s 1998 offense is not a “crime of violence” within the meaning of 18 U.S.C. § 16 and so is not a “crime of domestic violence” within the meaning of 8 U.S.C. § 1227(a)(2)(E)®. I. Ortega-Mendez entered the United States without inspection around 1986. In 1998, he pleaded nolo contendere to battery under California Penal Code section 242. Shortly thereafter the Immigration and Naturalization Service (INS) filed a Notice to Appear, charging Ortega-Mendez with removability pursuant to 8 U.S.C. § 1182(a)(6)(A)® for being present in the United States without having been admitted or paroled. Ortega-Mendez conceded removability but applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(l), or, in the alternative, voluntary departure. The INS subsequently moved to preter-mit the application for cancellation of removal, arguing that Ortega-Mendez’s 1998 battery conviction was a “crime of domestic violence” within the meaning of 8 U.S.C. § 1227(a)(2)(E)®. An alien is ineligible for cancellation of removal under § 1229b(b)(l)(C) if he" } ]

[ { "docid": "22837244", "title": "", "text": "was removable because his conviction qualified as a crime of domestic violence, his application for cancellation of removal would be denied as a matter of discretion. Both parties appealed the IJ’s rulings to the BIA. On April 23, 2007, the BIA reversed the IJ’s holding terminating the removal proceedings and affirmed the IJ’s alternative holding denying cancellation of removal. With respect to removability, the BIA held that § 273.5(a) categorically qualified as a crime of domestic violence under 18 U.S.C. § 16(a) and (b). It reasoned that “[i]n light of the fact that a person cannot be convicted under section 273.5(a) without willfully using direct physical force of such violence as to cause a traumatic condition to the victim, we are satisfied that the offense has the use of physical force against the person of another as an element.” The BIA confined its analysis to the categorical approach and did not address the IJ’s findings regarding the modified categorical approach. II. Whether a state criminal conviction is a removable offense is reviewed de novo. Femandez-Ruiz v. Gonzales, 466 F.3d 1121, 1126 n. 7 (9th Cir.2006) (en banc). The BIA’s interpretation of whether California Penal Code § 273.5(a) is a crime of violence within the meaning of 18 U.S.C. § 16 is not entitled to deference because the BIA is not charged with administering that statute. Id. III. A legally admitted alien is removable if he has been convicted of a crime of domestic violence. 8 U.S.C. § 1227(a)(2)(E)(i) (“any alien who at any time after admission is convicted of a crime of domestic violence ... is deportable”). 8 U.S.C. § 1227(a)(2)(E)® defines a crime of domestic violence as including any “crime of violence (as defined in section 16 of Title 18) against a person committed ... by an individual with whom the person shares a child in common.” A crime of violence is defined by 18 U.S.C. § 16 as: (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense" }, { "docid": "22837242", "title": "", "text": "OPINION CALLAHAN, Circuit Judge: Jose Banuelos-Ayon (“Banuelos-Ayon” or “petitioner”) is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident on July 3, 1985. Following his 2000 conviction for a domestic violence offense, Banuelos-Ayon was charged with removability for committing a crime of violence pursuant to 8 U.S.C. § 1227(a)(2)(E)®. On October 26, 2006, Banuelos-Ayon conceded removability and submitted an application for cancellation of removal. The BIA denied his application, holding that his conviction under California Penal Code § 273.5(a) is categorically a crime of domestic violence. We agree and deny his petition for review. I. In Spring 2000, Banuelos-Ayon and his girlfriend — the mother of his children— were engaged in a heated argument. At some point during the argument petitioner’s girlfriend drove away because “she never wanted to see [Banuelos-Ayon] again.” Banuelos-Ayon chased after her in his car. He tried to block her car in at a stop sign “simply so [they] could talk.” As a result, the two vehicles collided, and his girlfriend was injured. Banuelos-Ayon left the scene of the accident and was later arrested at his place of work. On April 5, 2000, he pleaded guilty to “Corporal Injury to a Spouse/Cohabitant” in violation of California Penal Code § 273.5(a) and to a sentencing enhancement under California Penal Code § 12022(b) for use of a deadly weapon in the commission of the offense. On September 12, 2006, the Department of Homeland Security (“DHS”) issued a Notice to Appear charging Banuelos-Ayon with being removable pursuant to 8 U.S.C. § 1227(a)(2)(E)(i). Banuelos-Ayon conceded the charge of removability and on October 26, 2006, submitted an application for cancellation of removal. On December 20, 2006, the Immigration Judge (“IJ”) issued a written decision and two separate orders. In the first order, the IJ held that Banuelos-Ayon was not removable because DHS failed to establish by clear and convincing evidence that he had been convicted of a crime of domestic violence within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i). In the second order, the IJ concluded that if the BIA determined Banuelos-Ayon" }, { "docid": "23227217", "title": "", "text": "fraudulently obtained property, in violation of Title 18, United States Code, Section 2314.” Count Two of the indictment charged the substantive offense of interstate transportation of stolen property contrary to 18 U.S.C. § 2314. The count consists in large part of an extensive table of airline ticket numbers, with corresponding dollar values, travel dates, and destinations. Count Two was dismissed as to Omari when he pleaded guilty to Count One. As a result of his guilty plea, Omari was sentenced on Count One to six months’ imprisonment, three years’ probation, and restitution of $16,366.48, for which he was jointly and severally liable with two code-fendants. In October 2001, the Immigration and Naturalization Service (INS) initiated deportation proceedings against Omari, alleging that he was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, under 8 U.S.C. § 1227(a)(2)(A)(ii) as an alien convicted of two or more crimes involving moral turpitude, and under 8 U.S.C. § 1227(a)(2)(E)(i) as an alien convicted of a crime of domestic violence. In March 2003, the immigration judge (IJ) determined that Omari was subject to removal as an alien convicted of an aggravated felony, the aggravated felony being a fraud offense as defined by 8 U.S.C. § 1101(a)(43)(M) and a conspiracy as defined by 8 U.S.C. § 1101(a)(43)(U). The IJ also denied Omari’s application for cancellation of removal under 8 U.S.C. § 1229b(a), determining that Omari was statutorily ineligible for consideration for such relief because of his aggravated felony conviction. The IJ ordered that Omari be deported to Kenya. Omari appealed the decision to the BIA, contending that his prior conviction was not for an aggravated felony. The BIA affirmed without opinion. Discussion I. Jurisdiction and Standard of Review Under 8 U.S.C. § 1252(a)(2)(C) this court does not have jurisdiction to review the removal decision if Omari’s pri- or conviction was an aggravated felony. However, we do have jurisdiction to determine our own jurisdiction, ie., to determine whether the conviction qualifies as an aggravated felony. Lopez-Elias v. Reno, 209 F.3d 788, 791 & n. 3 (5th Cir.2000). With respect to" }, { "docid": "2374148", "title": "", "text": "PRISCILLA R. OWEN, Circuit Judge: Esau Rodriguez, a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals (BIA) that he is removable for having been convicted of an aggravated felony. Because the record does not establish that Rodriguez was convicted of an aggravated felony, as defined in 8 U.S.C. § 1101(a)(43), we grant his petition and vacate the order of removal. I In 2002, Rodriguez pleaded guilty to violating Texas Penal Code section 22.011 and was placed on deferred adjudication. Rodriguez was placed on community supervision and, in 2006, pleaded true to violating the terms of that supervision by drinking intoxicating beverages and failing to remain within Deaf Smith County, Texas. Rodriguez was adjudicated guilty and sentenced to four years of imprisonment. In 2010, he was served with a Notice to Appear, charging him with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), asserting that his conviction of the Texas offense of attempted sexual assault was an aggravated felony. The immigration judge (IJ) issued an oral decision finding that Rodriguez was removable because he had been convicted of an aggravated felony. The IJ concluded that Rodriguez’s conviction for attempted sexual assault under Texas Penal Code section 22.011 was a crime of violence as defined in 18 U.S.C. § 16(b) because the offense presented a substantial risk of the use of physical force against another. The IJ ordered Rodriguez removed to Mexico. The BIA dismissed Rodriguez’s appeal, holding that the “relevant portions” of section 22.011, which it determined were subsections (a)(l)(A)-(C) and (b), qualified as a crime of violence under 18 U.S.C. § 16(b) and that Rodriguez’s offense qualified as an aggravated felony because he was sentenced to more than one year of imprisonment, rendering him removable. Rodriguez timely petitioned this court for review pursuant to 8 U.S.C. § 1252. II “We must begin by determining whether we have jurisdiction to review the BIA’s decision,” which we do de novo. “Congress has specifically commanded in 8 U.S.C. § 1252(a)(2)(C) that no court has jurisdiction to review deportation orders for aliens who are removable because" }, { "docid": "19920350", "title": "", "text": "ORDER AND OPINION CANBY, Circuit Judge. ORDER The petition for panel rehearing is GRANTED. The memorandum disposition filed on June 30, 2005, 137 FedAppx. 985, is withdrawn and is replaced by an opinion and dissent filed contemporaneously with this order. The petition for rehearing en banc is dismissed as moot. OPINION Fernando Malta-Espinoza, a native and citizen of Mexico who is a permanent resident of the United States, petitions for review of an order of the Board of Immigration Appeals (“BIA”) holding that Malta-Espinoza’s state-law conviction for stalking rendered him removable under 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony. Reviewing de novo, Reyes-Alcaraz v. Ashcroft, 363 F.3d 937, 939 (9th Cir.2004), we grant the petition for review, reverse the decision of the BIA, and remand for further proceedings. DISCUSSION Malta-Espinoza is removable if stalking, as defined by California Penal Code § 646.9, qualifies as an aggravated felony by reason of being a “crime of violence.” 8 U.S.C. §§ 1227(a) (2) (A) (iii), 1101(a)(43)(F). In addition, if Malta-Espinoza’s conviction qualifies as an aggravated felony, it renders him statutorily ineligible for discretionary cancellation of removal. 8 U.S.C. § 1229b(a)(3). The Immigration Act, 8 U.S.C. § 1101(43)(F), defines “aggravated felony” to include “crimes of violence” as defined in 18 U.S.C. § 16, which provides: The term “crime of violence” means— (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. At the time of Malta-Espinoza’s offense, the California statute that he was convicted of violating provided in pertinent part: (a) Any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family, is guilty of" }, { "docid": "22911791", "title": "", "text": "EMILIO M. GARZA, Circuit Judge: Mario Vasquez-Martinez (“Vasquez-Martinez”) petitions for review of the Board of Immigration Appeals (“BIA”) dismissal of his appeal from the Immigration Judge’s (“IJ”) decision finding him ineligible for cancellation of removal. For the following reasons, we DENY the Petition for Review. I Vasquez-Martinez is a native of Mexico who was admitted to the United States as a lawful permanent resident in 1992. In 2003, Vasquez was indicted in a Texas state court for “intentionally and knowingly possessing], with intent to deliver, a controlled substance, namely, COCAINE ... in, on and within 1,000 feet of premises of a school ...” See Tex. Health and Safety Code Ann. § 481.112(a). Vasquez-Martinez’s judgment of conviction states that Vasquez pleaded guilty to possession of a controlled substance in a drug-free zone. Significantly, the judgment of conviction omitted the words “with intent to deliver.” Vasquez-Martinez received a sentence of six years, which was suspended to six years on probation. In 2006, his probation was revoked and he was sentenced to two years of imprisonment. Vasquez-Martinez was charged with removability via a Notice to Appear (“NTA”) on the basis that his Texas conviction constituted (1) an “aggravated felony” pursuant to the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii), and (2) a controlled substance violation pursuant to 8 U.S.C. § 1227(a)(2)(B) of the same statute. At his removal hearing before the IJ, Vasquez-Martinez admitted the factual allegations in the NTA. The IJ found that Vasquez-Martinez was removable for having committed a controlled substance violation, § 1227(a)(2)(B), but determined that the record did not support removability for having been convicted of an “aggravated felony” under § 1227(a)(2)(A)(iii), as the judgment of conviction stated only that Vasquez-Martinez was guilty of “possession”. The IJ concluded that Vasquez-Martinez was not an aggravated felon and thus eligible to apply for discretionary cancellation of removal under 8 U.S.C. § 1229b(a). Vasquez-Martinez filed an application for cancellation of removal, and the IJ held a hearing on the merits of that application. The Government contended that the omission of “with intent to deliver” from the judgment of conviction was" }, { "docid": "8811699", "title": "", "text": "Petitioner, a citizen of Trinidad, entered this country as a lawful permanent resident on January 20, 1992. In April 1998, petitioner was charged with indecent assault and battery on a person over the age of fourteen in violation of Mass. Gen. Laws ch. 265, § 13H (1990), for allegedly reaching down the pajama pants of his 19-year-old stepdaughter, who was residing in his household at the time of the incident. On July 27, 1998, petitioner pleaded guilty to the charge and was sentenced to eleven months’ incarceration, suspended, and was placed on probation for a term of three years. Based on this conviction, the Immigration and Naturalization Service (“INS”) commenced removal proceedings against petitioner on August 24, 1998, charging that he was removable under 8 U.S.C. § 1227(a)(2)(E)(i). At his removal hearing, petitioner admitted that he was convicted under Mass. Gen. Law ch. 265, § 13H, but denied that his conviction was for a “crime of domestic violence” as defined under 8 U.S.C. § 1227(a)(2)(E)(i). On January 20, 1999, Immigration Judge John B. Reid (“IJ”) rejected petitioner’s argument and determined that he was removable under 8 U.S.C. § 1227(a)(2)(E)(i) because his § 13H conviction constituted a crime of domestic violence. Reviewing the matter on appeal, the BIA noted that an offense does not fall within the definition of a “crime of domestic violence” under 8 U.S.C. § 1227(a)(2)(E)(i) unless (1) the crime is a “crime of violence” as defined in 18 U.S.C. § 16, and (2) the person against whom the crime was committed was a “protected person” within the meaning of § 1227(a)(2)(E)(i). Applying its traditional categorical approach to criminal convictions, the BIA determined that (1) petitioner’s crime constituted a “crime of violence” because the crime, as defined by Massachusetts case law, requires an intentional touching that is both indecent and nonconsensual and, therefore, involves a substantial risk that physical force may be used, and (2) petitioner’s victim was a “protected person” under Massachusetts law. The BIA therefore affirmed the IJ’s decision and dismissed petitioner’s appeal on August 27, 1999. Petitioner now appeals from the BIA’s decision pursuant to" }, { "docid": "5537979", "title": "", "text": "SYKES, Circuit Judge. Jaime De Leon Castellanos, a lawful permanent resident, asks this court to review the denial of his application for cancellation of removal. At issue is whether his second conviction for domestic battery qualifies as a “crime of violence” under 18 U.S.C. § 16(a) and thus is an aggravated felony prohibiting him from applying for cancellation. We hold that it is and therefore deny the petition. I. Background The facts are straightforward: In 1981 De Leon left Guatemala for the United States and in 1988 became a lawful permanent resident (the Department of Homeland Security pegs the date as 1990). Since coming to the United States, De Leon has worked several jobs, married, and fathered three children. He also twice pleaded guilty to domestic battery. In Illinois domestic battery is committed by (1) intentionally causing bodily harm to any family or household member, 720 III. Comp. Stat. 5/12-3.2(a)(l); or (2) making physical contact of an insulting or provoking nature with any family or household member, id. § 5/12-3.2(a)(2). In 2004 De Leon pleaded guilty to the “insulting or provoking contact” form of domestic battery after he grabbed his wife by the neck, held a knife to her, struck her, and prevented her from calling the police. A year later in 2005, De Leon struck his wife and was convicted of a second domestic-battery charge, this time for causing bodily harm to a family member in violation of section 5/12-3.2(a)(l). Because of De Leon’s prior domestic-battery conviction, this misdemeanor was upgraded to a felony, and he was sentenced to one year in prison. See id. § 5/12 — 3.2(b). The Department of Homeland Security initiated removal (deportation) proceedings charging that De Leon was removable on a number of grounds: He had been convicted of two crimes involving moral turpitude, see 8 U.S.C. § 1227(a)(2)(A)(ii); he had committed an aggravated felony in the form of a crime of violence, see id. § 1227(a)(2)(A)(iii); and he had committed a crime of domestic violence, see id. § 1227(a)(2)(E)(i). De Leon denied that he committed an aggravated felony or a crime of domestic" }, { "docid": "5614416", "title": "", "text": "ORDER AND OPINION BEA, Circuit Judge. ORDER The opinion filed on December 12, 2005, and reported at 431 F.3d 673, is hereby withdrawn and replaced by the opinion filed concurrently with this order. Further petitions for rehearing and for rehearing en banc will be accepted, and the time for filing petitions for rehearing shall run anew commencing on the filed date of the substituted opinion. See Fed. R.App. P. 40(a)(1) and 35(c). OPINION Victor Valencia, a native and citizen of Peru, petitions for review from the Board of Immigration Appeals’ (“BIA”) order summarily affirming the Immigration Judge’s (“IJ”) order of removal. Valencia was convicted of felony unlawful sexual intercourse with a person under eighteen, who was more than three years younger than he, in violation of California Penal Code section 261.5(c). The IJ found Valencia removable for having committed an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), holding the crime constituted a crime of violence under 8 U.S.C. § 1101(a)(43)(F), which defines a crime of violence pursuant to 18 U.S.C. § 16. Our jurisdiction is controlled by 8 U.S.C. § 1252. We grant the petition for review and hold that a violation of California Penal Code section 261.5(c) does not constitute a crime of violence under 18 U.S.C. § 16. I On May 29, 1997, Valencia pleaded guilty to a felony violation of California Penal Code section 261.5(c). The imposition of his sentence was suspended for a period of five years, during which time he was placed on probation on the condition that he serve one year in the county jail. At the change of plea hearing, the judge specifically advised, and Valencia acknowledged, that this conviction could be used to deport him. Valencia was charged in the notice to appear with being removable as an aggravated felon for committing sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A), and for committing a crime of violence under 8 U.S.C. § 1101(a)(43)(F). II The IJ found Valencia removable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii), holding the crime constituted a crime of violence under 8 U.S.C. § 1101(a)(43)(F)," }, { "docid": "22837243", "title": "", "text": "injured. Banuelos-Ayon left the scene of the accident and was later arrested at his place of work. On April 5, 2000, he pleaded guilty to “Corporal Injury to a Spouse/Cohabitant” in violation of California Penal Code § 273.5(a) and to a sentencing enhancement under California Penal Code § 12022(b) for use of a deadly weapon in the commission of the offense. On September 12, 2006, the Department of Homeland Security (“DHS”) issued a Notice to Appear charging Banuelos-Ayon with being removable pursuant to 8 U.S.C. § 1227(a)(2)(E)(i). Banuelos-Ayon conceded the charge of removability and on October 26, 2006, submitted an application for cancellation of removal. On December 20, 2006, the Immigration Judge (“IJ”) issued a written decision and two separate orders. In the first order, the IJ held that Banuelos-Ayon was not removable because DHS failed to establish by clear and convincing evidence that he had been convicted of a crime of domestic violence within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i). In the second order, the IJ concluded that if the BIA determined Banuelos-Ayon was removable because his conviction qualified as a crime of domestic violence, his application for cancellation of removal would be denied as a matter of discretion. Both parties appealed the IJ’s rulings to the BIA. On April 23, 2007, the BIA reversed the IJ’s holding terminating the removal proceedings and affirmed the IJ’s alternative holding denying cancellation of removal. With respect to removability, the BIA held that § 273.5(a) categorically qualified as a crime of domestic violence under 18 U.S.C. § 16(a) and (b). It reasoned that “[i]n light of the fact that a person cannot be convicted under section 273.5(a) without willfully using direct physical force of such violence as to cause a traumatic condition to the victim, we are satisfied that the offense has the use of physical force against the person of another as an element.” The BIA confined its analysis to the categorical approach and did not address the IJ’s findings regarding the modified categorical approach. II. Whether a state criminal conviction is a removable offense is reviewed de novo. Femandez-Ruiz" }, { "docid": "20405516", "title": "", "text": "T.G. NELSON, Circuit Judge: Severiano Vasquez-Hernandez petitions for review of the Board of Immigration Appeals’ (“BIA”) decision denying his appeal from the Immigration Judge’s (“IJ”) order denying his motion to reopen. The IJ held that Vasquez-Hernandez was statutorily ineligible under 8 U.S.C. § 1229b(b) for cancellation of removal based on his conviction for corporal injury to a spouse, an offense described in 8 U.S.C. § 1227(a)(2), and held that the petty offense exception in 8 U.S.C. § 1182(a)(2) was inapplicable to Vasquez-Hernandez. We deny the petition for review. I. BACKGROUND Vasquez-Hernandez is a native and citizen of Mexico who entered the United States illegally in July 1988. On August 8, 2002, Vasquez-Hernandez was convicted in the Orange County Superior Court of violating California Penal Code § 273.5, corporal injury to a spouse. The trial court sentenced him to fourteen days in jail, eight hours of community service, and three years probation. Under § 273.5, the sentence could not have exceeded one year. On August 9, 2002, the Immigration and Naturalization Service (“INS”), now Immigration and Customs Enforcement (“ICE”), charged Vasquez-Hernandez as being removable under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled. Vasquez-Hernandez conceded removability. In August 2004, the IJ pretermitted Vasquez-Hernandez’s request for cancellation of removal, finding that Vasquez-Hernandez was statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b(b) because he had been convicted of a crime of domestic violence as defined in 8 U.S.C. § 1227(a)(2)(E). The IJ denied Vasquez-Hernandez’s motion to reopen, finding that the petty offense exception in 8 U.S.C. § 1182(a)(2)(A)(ii) did not apply to Vasquez-Hernandez’s conviction. Therefore, the IJ found Vasquez-Hernandez statutorily ineligible for cancellation of removal. The BIA affirmed. Vasquez-Hernandez filed a timely petition for review with this court. II. STANDARD OF REVIEW As the BIA adopted the IJ’s decision and also added its own reasons, we review both decisions. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.2005). We review the denial of a motion to reopen for abuse of discretion and questions of law de novo. Mohammed v. Gonzales, 400" }, { "docid": "5537980", "title": "", "text": "guilty to the “insulting or provoking contact” form of domestic battery after he grabbed his wife by the neck, held a knife to her, struck her, and prevented her from calling the police. A year later in 2005, De Leon struck his wife and was convicted of a second domestic-battery charge, this time for causing bodily harm to a family member in violation of section 5/12-3.2(a)(l). Because of De Leon’s prior domestic-battery conviction, this misdemeanor was upgraded to a felony, and he was sentenced to one year in prison. See id. § 5/12 — 3.2(b). The Department of Homeland Security initiated removal (deportation) proceedings charging that De Leon was removable on a number of grounds: He had been convicted of two crimes involving moral turpitude, see 8 U.S.C. § 1227(a)(2)(A)(ii); he had committed an aggravated felony in the form of a crime of violence, see id. § 1227(a)(2)(A)(iii); and he had committed a crime of domestic violence, see id. § 1227(a)(2)(E)(i). De Leon denied that he committed an aggravated felony or a crime of domestic violence, but conceded that he was removable as an alien convicted of two crimes involving moral turpitude. Although this concession effectively rendered De Leon removable, an otherwise removable alien who has been admitted as a permanent resident, as De Leon has, may seek cancellation of removal if the alien can show, among other things, that he has never been convicted of an aggravated felony. Id. § 1229b(a)(3). De Leon accordingly sought cancellation of removal because, in his view, he had not been not convicted of an aggravated felony. An Immigration Judge disagreed, concluding that De Leon did not qualify for cancellation of removal because his 2005 domestic-battery conviction for intentionally causing bodily harm to his wife was a crime of violence under either 18 U.S.C. § 16(a) or (b) and therefore an aggravated felony. See 8 U.S.C. § 1101(a)(43)(F). The Board of Immigration Appeals agreed, but on a more limited basis; the Board determined that De Leon’s conviction was a crime of violence under 18 U.S.C. § 16(a) because the crime involved “an offense that" }, { "docid": "23004477", "title": "", "text": "19, 1999, he committed the crime of battery by “willfully and unlawfully us[ing] force and violence upon the person of REYNA BAZAN, a person who is the mother of [his] children,” in violation of California Penal Code section 243(e). Galeana-Mendoza subsequently pleaded nolo contendere and was convicted on that charge. California later filed another single-count misdemeanor complaint against Galeana-Mendoza, this time alleging that on October 28, 2000, Galeana-Mendoza committed the crime of battery by “willfully and unlawfully us[ing] force and violence upon the person of REINA BAZAN, a person WHO IS THE MOTHER OF HIS CHILD,” in violation of California Penal.Code section 243(e). Galeana-Mendoza again pleaded nolo contendere and again was convicted. In the period between his two convictions, the Immigration and Naturalization Service (“INS”) began removal proceedings against Galeana-Mendoza by filing a notice to appear charging him as removable under 8 U.S.C. § 1182(a)(6)(A)(i), as “[a]n alien present in the United States without being admitted or paroled.” At a hearing before the IJ, Galeana-Mendoza conceded removability but sought cancellation of removal pursuant to § 1229b(b). After Galeana-Mendoza’s October 2000 conviction, the INS filed an additional charge of deportability against Galeana-Mendoza. This charge alleged that Ga-leana-Mendoza is an alien who has been convicted of a “crime involving moral turpitude” under § 1182(a)(2)(A)(i)(I). In support of that allegation the charge relied upon Galeana-Mendoza’s two convictions for violation of California Penal Code section 243(e). Galeana-Mendoza admitted the convictions and conceded re-movability under § 1182(a)(6)(A)(i), but contested his removability under § 1182(a)(2)(A)(i)(I) and sought cancellation of removal pursuant to § 1229b(b) and voluntary departure under § 1229c(b). After the hearing, the IJ issued an oral decision holding that Galeana-Mendoza was (1) removable as an alien present in the United States “without being admitted or paroled,” pursuant to § 1182(a)(6)(A)(i), as Galeana-Mendoza conceded he was; (2) removable as an alien who has been convicted of two “crimefsj involving moral turpitude,” pursuant to § 1182(a)(2)(A)(i)(I); and (3) not eligible for cancellation of removal pursuant to § 1229b(b) because (a) he could not establish ten years of continuous presence in the United States immediately preceding the" }, { "docid": "23349380", "title": "", "text": "of appeals.” Whether Ortega-Mendez’s 1998 offense is a “crime of violence” within the meaning of 18 U.S.C. § 16 and hence can be a “crime of domestic violence” within the meaning of 8 U.S.C. § 1227(a)(2)(E) is a question of law. See United States v. Trinidad-Aquino, 259 F.3d 1140, 1142 (9th Cir.2001). We therefore have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D) to decide that question. See Lisbey v. Gonzales, 420 F.3d 930, 932 (9th Cir.2005). Because the BIA streamlined the case, we review the IJ’s opinion as the final agency decision. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). We do not defer to BIA interpretations of state law or of provisions of the federal criminal code referenced within, but not part of, the Immigration and Nationality Act. See Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir.2005); Singh v. Ashcroft, 386 F.3d 1228, 1230-31 (9th Cir.2004). III. A. Under 8 U.S.C. § 1229b(b)(l)(C), an alien who is not a legal permanent resident is ineligible for cancellation of removal if he has been “convicted of an offense under section ... 1227(a)(2) ... of this title, subject to paragraph (5).” Section 1227(a)(2)(E)®, the subsection of § 1227(a)(2) pertinent here, provides as follows: Any alien who at any time after admission is convicted of a crime of domestic violence ... is deportable. For purposes of this clause, the term “crime of domestic violence” means any crime of violence (as defined in section 16 of Title 18) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individuars acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local" }, { "docid": "398887", "title": "", "text": "of a domestic violence program, because it could not consider new evidence on appeal; it also noted that Marquez did not file a motion to remand and that the evidence was not material in any event. Marquez’s timely petition for review followed. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction pursuant to 8 U.S.C. § 1252. When, as here, the BIA adopts the IJ’s decision and also adds its own reasons, we review both decisions. Vasquez-Hernandez v. Holder, 590 F.3d 1053, 1054 (9th Cir.2010). “The Ninth Circuit reviews de novo whether a conviction constitutes a removable offense under the Immigration and Nationality Act.” Szalai v. Holder, 572 F.3d 975, 978 (9th Cir.2009) (per curiam). Purely legal questions, including the BIA’s interpretation of the INA, are likewise reviewed de novo. Id. at 979. DISCUSSION Marquez’s primary argument is that § 273.5 is not a categorical crime of domestic violence within the meaning of § 1227(a)(2)(E)® because § 273.5 casts its protective mantel over too many categories of victims. He recognizes ’ that we have previously held that § 273.5 “is categorically a crime of domestic violence.” Banuelos-Ayon v. Holder, 611 F.3d 1080, 1081 (9th Cir.2010); see also Vasquez-Hernandez, 590 F.3d at 1054-56. However, Marquez argues, in that case we focused on the question of whether § 273.5 spelled out a crime of violence and did not expressly consider the limiting adjective — domestic. Thus, he says, Banuelos-Ayon does not bind us. See Estate of Magnin v. Comm’r, 184 F.3d 1074, 1077 (9th Cir.1999). We believe that in context there was little reason for Banuelos-Ayon to be more explicit because it is apparent that § 273.5 is categorically a crime that is both domestic and violent in nature, but we will now put any uncertainty to rest. We start, as we must, with the language of the statutes. At the time of Marquez’s conviction, his crime was defined as follows in § 273.5(a): Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child," }, { "docid": "20405517", "title": "", "text": "Customs Enforcement (“ICE”), charged Vasquez-Hernandez as being removable under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled. Vasquez-Hernandez conceded removability. In August 2004, the IJ pretermitted Vasquez-Hernandez’s request for cancellation of removal, finding that Vasquez-Hernandez was statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b(b) because he had been convicted of a crime of domestic violence as defined in 8 U.S.C. § 1227(a)(2)(E). The IJ denied Vasquez-Hernandez’s motion to reopen, finding that the petty offense exception in 8 U.S.C. § 1182(a)(2)(A)(ii) did not apply to Vasquez-Hernandez’s conviction. Therefore, the IJ found Vasquez-Hernandez statutorily ineligible for cancellation of removal. The BIA affirmed. Vasquez-Hernandez filed a timely petition for review with this court. II. STANDARD OF REVIEW As the BIA adopted the IJ’s decision and also added its own reasons, we review both decisions. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.2005). We review the denial of a motion to reopen for abuse of discretion and questions of law de novo. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). III. DISCUSSION The question here is whether the petty offense exception found in 8 U.S.C. § 1182(a)(2)(A)(ii) is applicable to an 8 U.S.C. § 1229b(b) cancellation of removal request if that request is otherwise barred by an alien’s conviction for an offense described in § 1227(a)(2) or § 1227(a)(3). The cancellation of removal argument before us is understandable only by reference to the statutory scheme that governs removability and cancellation of removal. Before an alien is removed from the United States, a court usually completes two separate inquiries. First, a court must find that an alien is removable. Second, a court may find that some other kind of statutory relief prevents removal. One of these grounds of relief is called cancellation of removal. Distinguishing, therefore, between the removal statutes, § 1182 and § 1227, and the cancellation of removal statute, § 1229b, is important here. Whether an alien is removable in the first instance depends on whether the alien is inadmissible or deportable. An inadmissible alien is one who was" }, { "docid": "8811698", "title": "", "text": "AMENDED OPINION SOTOMAYOR, Circuit Judge: Felix Sutherland, a citizen of Trinidad and a permanent resident of the United States, petitions this Court for review of an order of the Board of Immigration Appeals (“BIA”) affirming that he is eligible for removal under 8 U.S.C. § 1227(a)(2)(E)(i) as an alien convicted of a crime of domestic violence based upon his July 1998 conviction in Massachusetts for indecent assault and battery on a person over the age of fourteen. Petitioner claims that his conviction does not satisfy either of the two requisite elements for a “crime of domestic violence” under 8 U.S.C. § 1227(a)(2)(E)(i). Specifically, he contends that (1) his offense was not a “crime of violence” within the meaning of 18 U.S.C. § 16(b); and (2) his victim was not protected from his acts by the domestic or family violence laws of Massachusetts. For the reasons discussed, we conclude that petitioner is removable under 8 U.S.C. § 1227(a)(2)(E)(i) as an alien who was convicted of a crime of domestic violence and affirm the BIA’s decision. BACKGROUND Petitioner, a citizen of Trinidad, entered this country as a lawful permanent resident on January 20, 1992. In April 1998, petitioner was charged with indecent assault and battery on a person over the age of fourteen in violation of Mass. Gen. Laws ch. 265, § 13H (1990), for allegedly reaching down the pajama pants of his 19-year-old stepdaughter, who was residing in his household at the time of the incident. On July 27, 1998, petitioner pleaded guilty to the charge and was sentenced to eleven months’ incarceration, suspended, and was placed on probation for a term of three years. Based on this conviction, the Immigration and Naturalization Service (“INS”) commenced removal proceedings against petitioner on August 24, 1998, charging that he was removable under 8 U.S.C. § 1227(a)(2)(E)(i). At his removal hearing, petitioner admitted that he was convicted under Mass. Gen. Law ch. 265, § 13H, but denied that his conviction was for a “crime of domestic violence” as defined under 8 U.S.C. § 1227(a)(2)(E)(i). On January 20, 1999, Immigration Judge John B. Reid (“IJ”)" }, { "docid": "2363419", "title": "", "text": "OPINION W. FLETCHER, Circuit Judge: Petitioner Rogelio Barragan-Lopez, a citizen of Mexico and lawful permanent resident of the United States, pleaded guilty to false imprisonment in violation of California Penal Code § 210.5. An Immigration Judge (“U”) subsequently held that Barragan-Lopez’s conviction under § 210.5 qualified as a crime of violence under 18 U.S.C. § 16(b), and therefore as an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). The IJ ordered Bar-ragan-Lopez removed, and the Board of Immigration Appeals (“BIA”) affirmed. We deny Barragan-Lopez’s petition for review. I. Background Barragan-Lopez is a native and citizen of Mexico. He became a conditional legal permanent resident on August 21, 1998. In 2004, California charged Barragan-Lopez with false imprisonment against his daughter “for purposes of protection from arrest, which substantially increased the risk of harm to victim and for the purpose of using victim as a shield,” a felony under California Penal Code § 210.5. Barragan-Lopez pleaded guilty to the charge. The Superior Court in Los Angeles sentenced him to three years’ imprisonment. On February 1, 2006, the government initiated removal proceedings against Bar-ragan-Lopez. The government eventually reduced the charges to a single charge of removability under 8 U.S.C. § 1227(a) (2) (A.) (iii) for having committed an “aggravated felony.” The IJ held that Barragan-Lopez’s conviction under § 210.5 constituted a categorical crime of violence under 18 U.S.C. § 16(b)—and hence an aggravated felony-—and ordered him removed. The BIA affirmed, holding that the offense defined by § 210.5 was categorically a crime of violence under § 16(b). Barragan-Lopez petitioned for review in this court. II. Jurisdiction and Standard of Review Under 8 U.S.C. § 1252(a)(2)(C), this court lacks jurisdiction to review a final order of removal against an alien who is removable based on his conviction for an aggravated felony. See Huerta-Guevara v. Ashcroft, 321 F.3d 883, 885 (9th Cir.2003). However, we retain jurisdiction to determine whether a particular offense constitutes an aggravated felony, id., and we review that question de novo. See, e.g., Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir.2004). III. Discussion Barragan-Lopez was convicted under California Penal Code § 210.5," }, { "docid": "23004476", "title": "", "text": "BERZON, Circuit Judge. As has been observed, “[t]ime has only confirmed Justice Jackson’s powerful dissent in the De George case, in which he called ‘moral turpitude’ an ‘undefined and undefinable standard.’ ” Mei v. Ashcroft, 393 F.3d 737, 741 (7th Cir.2004) (quoting Jordan v. De George, 341 U.S. 223, 235, 71 S.Ct. 703, 95 L.Ed. 886 (1951) (Jackson, J. dissenting)). Nevertheless, we are once more called upon to determine whether a particular state crime qualifies as one “involving moral turpitude” under the Immigration and Nationality Act. As did the Board of Immigration Appeals (“BIA”) in In re Sanudo, 23 I. & N. Dec. 968, 973 (2006), decided after submission of this petition for decision, we conclude that conviction for domestic battery under California Penal Code section 243(e) does not categorically qualify as a “crime involving moral turpitude.” I. Anicefaro Galeana-Mendoza, a native and citizen of Mexico, entered the United States without inspection on or around June 1, 1988. Roughly eleven years later, California filed a single-count misdemean- or complaint against Galeana-Mendoza, alleging that on July 19, 1999, he committed the crime of battery by “willfully and unlawfully us[ing] force and violence upon the person of REYNA BAZAN, a person who is the mother of [his] children,” in violation of California Penal Code section 243(e). Galeana-Mendoza subsequently pleaded nolo contendere and was convicted on that charge. California later filed another single-count misdemeanor complaint against Galeana-Mendoza, this time alleging that on October 28, 2000, Galeana-Mendoza committed the crime of battery by “willfully and unlawfully us[ing] force and violence upon the person of REINA BAZAN, a person WHO IS THE MOTHER OF HIS CHILD,” in violation of California Penal.Code section 243(e). Galeana-Mendoza again pleaded nolo contendere and again was convicted. In the period between his two convictions, the Immigration and Naturalization Service (“INS”) began removal proceedings against Galeana-Mendoza by filing a notice to appear charging him as removable under 8 U.S.C. § 1182(a)(6)(A)(i), as “[a]n alien present in the United States without being admitted or paroled.” At a hearing before the IJ, Galeana-Mendoza conceded removability but sought cancellation of removal pursuant to §" }, { "docid": "53049", "title": "", "text": "WHITE, Circuit Judge. Appellant Ricardo Perez-Vasquez pled guilty of illegally reentering the United States, 8 U.S.C. § 1326(a), and was sentenced to 71 months in prison, to run consecutively to a state sentence yet to be completed. He challenges his sentence as creating an unwarranted disparity and seeks remand for resentencing. We AFFIRM. Perez-Vasquez entered the United States sometime before March of 2003. On September 29, 2003, he was convicted in Tennessee state court of one count of aggravated burglary and one count of sexual battery, and sentenced to three years’ incarceration (with 10.8 months left to serve) and three years’ probation. The Government deported Perez-Vasquez to Mexico on January 20, 2004. Perez-Vasquez reentered the United States in February 2004. He was arrested in April 2005 and charged with aggravated burglary. In July 2005 he pled guilty in Tennessee state court and was sentenced to three years’ imprisonment. The following October, a federal grand jury indicted Perez-Vasquez for reentering the United States after deportation. See 8 U.S.C. § 1326. In the federal proceeding, the Government filed a notice of enhancement, asserting that a conviction of reentry under 8 U.S.C. § 1326(a) would lead to an enhanced sentence under 8 U.S.C. § 1326(b)(2) because Perez-Vasquez’s prior removal from the United States “was subsequent to a conviction for commission of an aggravated felony,” as defined in 8 U.S.C. § 1101(a)(43). On June 6, 2007, Perez-Vasquez entered a notice of intent to plead guilty. Two days later, the U.S. Attorney entered a Stipulation of Factual Basis and, on June 11, Perez-Vasquez entered a guilty plea without the benefit of a plea agreement. A probation officer calculated Perez-Vasquez’s advisory Guidelines range using a base offense level of eight and applying a sixteen-level enhancement for a previous deportation for a crime of violence. U.S.S.G. § 2L1.2(a) (“Base Offense Level: 8”); U.S.S.G. § 2L1.2(b)(l)(A)(ii) (sixteen level enhancement for previous deportation after a crime of violence). The probation officer also incorporated a three-level reduction for acceptance of responsibility, making the final offense level 21. Perez-Vasquez’s past convictions, his status as a probationer, and the instant offense occurring" } ]

[ { "docid": "18679936", "title": "", "text": "plaintiff contemplated litigation McKenney would accept service of process for defendant. Plaintiff assumed that McKenney would still accept service when this action was brought. On December 15, 1983, however, McKenney informed plaintiff that he was no longer authorized to accept service of process on defendant’s behalf. Neither defendant’s counsel nor his former employer in Atlanta was able to tell plaintiff of defendant’s whereabouts. Plaintiff made extensive inquiries and finally located defendant in Cleveland. Prompt arrangements were made for personal service on defendant. Although the “good cause” standard of Rule 4(j) has, as yet, been subject to little judicial elaboration, see Sanders v. Marshall, 100 F.R.D. 480 (W.D.Pa.1984); Coleman v. Greyhound Lines, Inc., 100 F.R.D. 476 (N.D.Ill.1984), the court has no difficulty concluding that plaintiff had good cause for the 14 day delay at issue here. The harsh sanction of Rule 4(j) is appropriate to those cases in which non-service was the result of mere inadvertance. Arroyo v. Wheat, 102 F.R.D. 516 (D.Nev.1984); Coleman v. Greyhound Lines, Inc., supra, 100 F.R.D. at 477. Where plaintiff has made a reasonable effort to serve defendant, Congress intended that the 120 day deadline be extended. 1982 U.S.Code Cong. & Ad. News 4434, 4442. While it would be prudent for a plaintiff who will be unable to complete service within the statutory period to move for an enlargement of time under Rule 6(b) prior to the running of the 120 days, the failure to do so does not mandate dismissal under Rule 4(j). In this case, plaintiff was diligent in his efforts to serve defendant and he did, in fact, complete service only 14 days after the. deadline. Defendant has not alleged that he was prejudiced in any way by the brief delay. Under these circumstances, dismissal is unwarranted. Personal Jurisdiction The court has considered this motion on affidavits alone. No evidentiary hearing has been held. Therefore, plaintiff need only make a prima facie showing of jurisdiction through his own affidavit to avoid dismissal. Although plaintiff must ultimately establish the court’s jurisdiction over defendant by a preponderance of the evidence, at this stage a prima" } ]

[ { "docid": "14640066", "title": "", "text": "See Joint Submission Regarding Service Issues, 113, dated June 17, 1985. In that context, it is clear that regardless of whether either or both of the two February attempts at service were valid, this Court must focus first on whether plaintiff can show good cause for not effectuating valid service prior to February 13, 1984, — the end of the 120-day period. Only if plaintiff can show such good cause may this Court reach any other question herein. Federal Civil Rule 4© does not define “good cause.” However, some guidance is provided by the legislative history concerning the 1982 amendments to Rule 4. H.R. 7154, 97th Cong., 2d Sess., 128 Cong.Rec. H 9848, reprinted in 1982 U.S.Code Cong. & Ad.News 4434, 4440-42. That report indicates that if a plaintiff has not been diligent in his efforts to serve defendants), plaintiffs action should be dismissed without prejudice. If, however, the plaintiff has made reasonable efforts to effect service, then the plaintiff can move under Rule 6(b) to enlarge the time within which to serve or can oppose dismissal for failure to serve. A court would undoubtedly permit such a plaintiff additional time within which to effect service. Thus, a diligent plaintiff can preserve the cause of action. This result is consistent with the policy behind the time limit for service ... to encourage prompt movement of civil actions in the federal courts. 1982 U.S.Code Cong. & Ad.News at 4442. Accordingly, Rule 4© leads this court to examine the reasonableness and diligence of plaintiffs efforts to serve process. “Inadvertent or heedless non-service is what amended Rule 4(j) is aimed at. Coleman v. Greyhound Lines, Inc. 100 F.R.D. 476, 477 (N.D.Ill.1984). Congress intended that a plaintiff who had made reasonable efforts to effect service would be permitted additional time, if needed, under Rule 6(b).” Arroyo v. Wheat, 102 F.R.D. 516, 518 (D.Nev.1984) (other citations omitted). See also Federal Deposit Insurance Corp. v. Sims, 100 F.R.D. 792, 797 (N.D.Ala.1984) (“[T]he Court will liberally construe plaintiffs abortive efforts at obtaining service as bona fide and therefore GRANTS plaintiff 90 days from this date within which" }, { "docid": "1669716", "title": "", "text": "MEMORANDUM OPINION AND ORDER HAIGHT, District Judge: Plaintiff filed this action seeking judicial review of a decision made by the Secretary of Health and Human Services denying her disability insurance benefits and Supplemental Security Income benefits based on disability. The action was brought pursuant to sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3). Jurisdiction for this action is proper under 28 U.S.C. § 1331, and venue is proper under 28 U.S.C. § 1391(e). The complaint was filed on May 30,1986. The defendant, however, was not served with the summons and complaint until November 13,1986—47 days after the 120 day deadline for service imposed by Rule 4(j), F.R.Civ.P. That rule provides, in pertinent part: 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. Defendant now moves to dismiss pursuant to Rule 4(j). Rule 4(j) was enacted “... to encourage prompt movement of civil cases in federal court.” 2 J. Moore et al, Moore’s Federal Practice ¶ 4.46 at 4-433 n. 8 (2d ed. 1987). As responsibility for service was shifted from United States Marshals to private individuals, the 120 day deadline was added to Rule 4 to help insure timely ser vice. Sanders v. Marshall, 100 F.R.D. 480, 482-83 (W.D.Pa.1984) (citing House Rep. 7154—Federal Rules of Civil Procedure Amendments Acts of 1982). Thus, the deadline under Rule 4(j) was meant to be strictly construed; the availability of extensions of time under Rule 6(b) ensures that the operation of Rule 4(j) will not be unduly harsh. Burks v. Griffith, 100 F.R.D. 491, 492 (N.D.N.Y.1984). Hence, if a plaintiff fails without good cause to serve process within 120 days of filing, dismissal is mandatory. Geller v. Newell, 602 F.Supp. 501, 502 (S.D.N.Y.1984); F.R.Civ.P. 4(j) (if service" }, { "docid": "20920566", "title": "", "text": "to state a cause of action. The matter was referred to Magistrate James D. Hodges for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate found that defendants had sufficient minimum contacts with Iowa and that the defendants were timely served. However, the Magistrate found that 11 U.S.C. § 362 does not create a private right of action, and that plaintiff’s exclusive right of action for damages from violation of the automatic stay existed in the Bankruptcy Court. II. DISCUSSION A. Defendants’ Objections. Defendants object to the Magistrate’s ruling, finding that they were timely served and that they have sufficient minimum contacts with Iowa. 1. Timeliness of Service. Fed.R. Civ.P. 4(j) requires that service of the summons and complaint must be made on a defendant within 120 days after the filing of the complaint. If the plaintiff cannot show good cause why service was not made within the time period, the action shall be dismissed as to that defendant without prejudice. Plaintiff filed his complaint on August 6,1984. It was dismissed and reinstated on December 21, 1984. Defendants were served on April 22, 1985, 121 days after the complaint was filed. Plaintiff contends that he had two good reasons for the delay: (1) defendants had moved and could not be readily located, and (2) plaintiff changed counsel. Defendants argue that plaintiff has failed to show “good cause” and that, therefore, Rule 4(j) requires dismissal. Defendants cite Coleman v. Greyhound Lines, Inc., 100 F.R.D. 476 (1984), for the proposition that change of counsel does not constitute “good cause.” In Coleman, the court noted that new counsel’s “so-called inadvertence is precisely the factor the rule was aimed at. Its entire focus was to force plaintiffs’ (more realistically their lawyers’) diligence in order to preserve causes of action against limitations problems.” Id. at 477. What apparently bothered the Coleman court most was the fact that even after new counsel learned of the non-service, eight days still remained before the 120-day time period ran and “there was no hint of any reason timely service could not have been obtained,” and that" }, { "docid": "23671964", "title": "", "text": "failure to effect service is due to that person’s evasion of service, a court should not dismiss because the plaintiff has ‘good cause’ for not completing service.” 1982 U.S. Code Cong. & Ad.News at 4446 n. 25; 96 F.R.D. at 122 n. 25. In the present case, as discussed below, there is no evidence that the defendant has evaded service. Courts which have considered the definition and scope of the “good cause” exception to Rule 4® have relied, in varying degrees, upon the same factors which used to be relied upon in determining, under the unamended rule, whether a plaintiff who was tardy in service could establish “due diligence” to defeat a Rule 41(b) motion for dismissal to prosecute: the plaintiff’s diligence and the prejudice to the defendant. See Shuster v. Conley, 107 F.R.D. 755, 757 (W.D.Pa.1985) (“Most courts have adopted the old diligence standard in determining when a party has shown good cause [under Rule 4(j)]....”). The first factor which courts have considered in determining whether good cause exists for service outside the 120-day limit is whether the delay in service was “the result of mere inadvertence,” or whether there has been a “reasonable effort” to effect service. Getter v. Newell, 602 F.Supp. 501, 502 (S.D.N.Y.1984). There is some support for this interpretation in the legislative history of the FRCPAA. The Judiciary Report which accompanied the bill states that: the status of the plaintiff’s cause of action turns upon the plaintiff’s diligence. If the plaintiff has not been diligent, then the court will dismiss the action for failure to serve within 120 days____ If, on the other hand, the plaintiff has made reasonable efforts to effect service, then the plaintiff can move under Rule 6(b) to enlarge the time within which to serve or can oppose dismissal for failure to serve. A court would undoubtedly permit such a plaintiff additional time within which to effect service. Thus, a diligent plaintiff can preserve the cause of action. This result is consistent with the policy behind the time limit for service and with statutes of limitation, both of which are designed" }, { "docid": "18384996", "title": "", "text": "for continuance in another case pending in federal district court. According to the defendants, these acts show that Dean knew that he needed to protect his clients’ procedural rights and that he could have taken steps to do so in this case, including referring the plaintiff to another attorney. Unfortunately, neither the statute itself nor its legislative history define “good cause.” Moreover, the cases that have addressed the issue are more helpful in determining what is not good cause, rather than what is. Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir.1985) (neither inadvertence of counsel nor plaintiff’s desire to amend his complaint before service constitute good cause); Ruley v. Nelson, 106 F.R.D. 514, 518 (D.Nev.1985) (counsel’s ignorance of Rule 4(j) no excuse and desire to learn more about the case insufficient); Arroyo v. Wheat, 102 F.R.D. 516, 518 (D.Nev.1984) (Rule 4(j) is aimed at inadvertent or heedless nonservice); Coleman, supra, at 477-478 (inadvertence of new lawyer in not discovering original lawyer’s failure to serve is not good cause). The only circumstances that clearly constitute good cause are where the putative defendant is “evasive of service,” 128 Cong.Rec. H 9849, H 9852 n. 25 (daily ed. Dec. 15, 1982), and where the plaintiff has made reasonable efforts to effect service. Arroyo, supra, at 518. The cases cited above, however, do shed light on the policy behind Rule 4(j). The Ninth Circuit Court of Appeals’ reasoning in Wei is especially helpful. As the court said, “[t]he rule is intended to force parties and their attorneys to be diligent in prosecuting their causes of action.” Wei, supra, at 372. Therefore, if an attorney could get around the rule by claiming that she forgot about the time limit imposed by Rule 4(j), the rule would be meaningless as any attorney could invent such a story. Id. at 372. The court then recognized that one circumstance that might constitute good cause is where a plaintiff “was prevented from effecting service within the 120-day limit by factors beyond his control.” Id. at 372. To support this proposition, the court cited Moorehead v. Miller," }, { "docid": "18384997", "title": "", "text": "clearly constitute good cause are where the putative defendant is “evasive of service,” 128 Cong.Rec. H 9849, H 9852 n. 25 (daily ed. Dec. 15, 1982), and where the plaintiff has made reasonable efforts to effect service. Arroyo, supra, at 518. The cases cited above, however, do shed light on the policy behind Rule 4(j). The Ninth Circuit Court of Appeals’ reasoning in Wei is especially helpful. As the court said, “[t]he rule is intended to force parties and their attorneys to be diligent in prosecuting their causes of action.” Wei, supra, at 372. Therefore, if an attorney could get around the rule by claiming that she forgot about the time limit imposed by Rule 4(j), the rule would be meaningless as any attorney could invent such a story. Id. at 372. The court then recognized that one circumstance that might constitute good cause is where a plaintiff “was prevented from effecting service within the 120-day limit by factors beyond his control.” Id. at 372. To support this proposition, the court cited Moorehead v. Miller, 102 F.R.D. 834 (D. V.I.1984). In Moorehead, a pro se plaintiff failed to serve the defendant until eight months after he filed his complaint. The plaintiff cited two factors to demonstrate good cause; first, that he had been hospitalized in Atlanta, Georgia, until August 28, 1983, and, second, that after he returned to the Virgin Islands on September 1, 1983, he was incorrectly told by the court’s clerk that service had been effected. The court held that these facts established good cause. Id. at 836. It is important to note that the 120-day period had passed even before the plaintiff was released from the hospital as his complaint was filed on April 27, 1983. Therefore, it seems that the only factor preventing service during the 120-day period was plaintiff’s illness. In analogous situations, it has been held that illness of counsel may justify a failure to comply with filing deadlines. See, e.g., Islamic Republic of Iran v. Boeing Co., 739 F.2d 464, 465 (9th Cir.1984), cert. denied, 470 U.S. 1053, 105 S.Ct. 1755, 84 L.Ed.2d" }, { "docid": "23671972", "title": "", "text": "a plaintiff’s diligence in trying to effect service. However, failure to make such a motion certainly is not by itself fatal to a plaintiff’s efforts to establish good cause. See Geller, 602 F.Supp. at 502 (“While it would be prudent for a plaintiff who will be unable to complete service within the statutory period to move for an enlargement of time under Rule 6(b) prior to the running of the 120 days, the failure to do so does not mandate dismissal under Rule 4(j).”) Finally, a factor which must be considered with regard to Gordon action only is that Gordon was filed on March 3, 1982, almost a year before the effective date of the FRCPAA, which was February 26, 1983. Neither Fustok nor plaintiffs has addressed the issue of whether Rule 4(j)’s 120-day service requirement should be applied to Gordon. The FRCPAA provided that the amendments to Rule 4 would not become effective until forty-five days after enactment of the statute. The section-by-section analysis states that “[t]he delayed effective date means that service of process issued before the effective date will be made in accordance with current [as of Dec. 15, 1982] Rule 4,” 1982 U.S. Code Cong. & Ad. News at 4447; 96 F.R.D. at 122-23 (1983), and that the purpose of this 45-day delay between the Rule 4 amendments becoming law and taking effect was to give the bench and bar “an opportunity to prepare to implement the changes made by the legislation,” id. See also Siegel Commentary, 96 F.R.D. at 93. However, it is unclear whether this statement extends to Rule 4(j)’s 120-day service limit or applies only to the new methods of service added to Rule 4 by the FRCPAA. Courts which have addressed the issue of whether Rule 4(j)’s 120-day limit should apply to actions which were filed before the FRCPAA’s effective date have reached differing conclusions. In Verri v. State Automobile Mutual Insurance Co., 583 F.Supp. 302, 306 (D.R.I.1984), the court held that Rule 4(j)’s 120-day limit does not apply to such actions, because “it seems unduly harsh to dismiss a complaint for" }, { "docid": "1669717", "title": "", "text": "prejudice upon the court’s own initiative with notice to such party or upon motion. Defendant now moves to dismiss pursuant to Rule 4(j). Rule 4(j) was enacted “... to encourage prompt movement of civil cases in federal court.” 2 J. Moore et al, Moore’s Federal Practice ¶ 4.46 at 4-433 n. 8 (2d ed. 1987). As responsibility for service was shifted from United States Marshals to private individuals, the 120 day deadline was added to Rule 4 to help insure timely ser vice. Sanders v. Marshall, 100 F.R.D. 480, 482-83 (W.D.Pa.1984) (citing House Rep. 7154—Federal Rules of Civil Procedure Amendments Acts of 1982). Thus, the deadline under Rule 4(j) was meant to be strictly construed; the availability of extensions of time under Rule 6(b) ensures that the operation of Rule 4(j) will not be unduly harsh. Burks v. Griffith, 100 F.R.D. 491, 492 (N.D.N.Y.1984). Hence, if a plaintiff fails without good cause to serve process within 120 days of filing, dismissal is mandatory. Geller v. Newell, 602 F.Supp. 501, 502 (S.D.N.Y.1984); F.R.Civ.P. 4(j) (if service is not timely made and plaintiff cannot show good cause for the failure, lawsuit “shall” be dismissed). Dismissal can be avoided under Rule 4(j) if the plaintiff can show “good cause” for the delayed service. See, e.g., Getter, supra, 602 F.Supp. at 502 (S.D.N.Y.1984) (motion for a Rule 4(j) dismissal denied where defendant’s attorney, upon whom service had been timely made, was no longer authorized to receive service, causing plaintiff to locate and serve defendant fourteen days late). Attorney inadvertence or negligence, however, do not constitute good cause. Winters v. Teledynes Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir.1985); Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir.1985), citing Geller, supra, 602 F.Supp. at 502; Coleman v. Greyhound Lines, 100 F.R.D. 476 (N.D.Ill.1984). In the case at bar, the plaintiff’s attorney has not shown good cause for serving process 47 days after the 120 day deadline. Essentially, he says the summons and complaint were, not timely served because of a clerical error in his office. Under the cited cases, this claim of" }, { "docid": "14640067", "title": "", "text": "oppose dismissal for failure to serve. A court would undoubtedly permit such a plaintiff additional time within which to effect service. Thus, a diligent plaintiff can preserve the cause of action. This result is consistent with the policy behind the time limit for service ... to encourage prompt movement of civil actions in the federal courts. 1982 U.S.Code Cong. & Ad.News at 4442. Accordingly, Rule 4© leads this court to examine the reasonableness and diligence of plaintiffs efforts to serve process. “Inadvertent or heedless non-service is what amended Rule 4(j) is aimed at. Coleman v. Greyhound Lines, Inc. 100 F.R.D. 476, 477 (N.D.Ill.1984). Congress intended that a plaintiff who had made reasonable efforts to effect service would be permitted additional time, if needed, under Rule 6(b).” Arroyo v. Wheat, 102 F.R.D. 516, 518 (D.Nev.1984) (other citations omitted). See also Federal Deposit Insurance Corp. v. Sims, 100 F.R.D. 792, 797 (N.D.Ala.1984) (“[T]he Court will liberally construe plaintiffs abortive efforts at obtaining service as bona fide and therefore GRANTS plaintiff 90 days from this date within which to perfect service properly on defendant or to suffer a dismissal for want of prosecution.”). Courts have differed as to what is evidence of reasonableness and diligence sufficient to support a finding of “good cause.” The legislative history indicates that a putative defendant’s “evasion of service” in the face of a plaintiffs attempt to effect such service would constitute good cause, and courts have held accordingly. See Prather v. Raymond Construction Co., 570 F.Supp. 278, 282 (N.D.Ga.1983) (“While it is true that plaintiff has not perfected service upon defendant, plaintiff had good cause for not perfecting service____ [Defendant has in effect evaded service by failing to return the acknowledgement of service.”); Coleman v. Greyhound Lines, Inc., 100 F.R.D. at 477 (N.D.Ill.1984) (“[LJegislative history ... provides only a single (and most obvious) illustration of ‘good cause’ — the putative defendant’s ‘evasion of service.’ 128 Cong.Rec. H 9849, H 9852 n. 25 (daily ed. Dec. 15, 1982) (section-by-section analysis of the 1982 amendments to the Rules, submitted by Rep. Edwards). In this ease the reasons advanced as" }, { "docid": "22257441", "title": "", "text": "(8th Cir.1985). The 1983 amendments to Fed.R. Civ.P. 4 “were intended primarily to relieve United States marshals of the burden of serving summonses and complaints in private civil actions.” 128 Cong. Rec. H9848, 9849 (daily ed. Dec. 15, 1982), reprinted in 1982 U.S.Code Cong. & Admin.News 4434, 4437. Thus, the general service of process rule, Fed.R.Civ.P. 4(c)(2)(A), requires that the “summons and complaint shall ... be served by any person who is not a party and is not less than 18 years of age.” Fed.R.Civ.P. 4(c)(2)(A). Service of the summons and complaint by United States marshals, their deputies, and specially-appointed process servers provided for in Fed.R. Civ.P. 4(c)(2)(B) is a limited exception to that general rule. While we do not believe that a specially-appointed process server was necessary in order that service be properly effected in this action, such a process server was appointed by the court and it was incumbent upon the plaintiff and his attorney to ensure timely service of process. See Fed.R.Civ.P. 4(a). The 120-day limit to effect service of process, established by Fed.R.Civ.P. 4(j) is to be strictly applied, and if service of the summons and the complaint is not made in time and the plaintiff fails to demonstrate good cause for the delay “the court must dismiss the action as to the unserved defendant.” 128 Cong.Rec. H9848, 9850 (daily ed. Dec. 15, 1982) (emphasis added), reprinted in 1982 U.S. Code Cong. & Admin.News 4434, 4441. It was in accordance with the strict interpretation of the 120-day rule intended by its drafters that the district court concluded that good cause had not been shown to excuse the plaintiff’s delay. Legislative history provides only one example where an extension for good cause would be permissible — specifically when the defendant intentionally evades service of process. 128 Cong.Rec. H9848, 9852 n. 25 (daily ed. Dec. 15, 1982), reprinted in 1982 U.S. Code Cong. & Admin.News 4434, 4446 n. 25. “Half-hearted” efforts by counsel to effect service of process prior to the deadline do not necessarily excuse a delay, even when dismissal results in the plaintiff's case being time-barred" }, { "docid": "14640070", "title": "", "text": "an enlargement of time under Rule 6(b) prior to the running of the 120 days, the failure to do so does not mandate dismissal under Rule 4(j). In this case, plaintiff was diligent in his efforts to serve defendant and he did, in fact, complete service only 14 days after the deadline. Defendant has not alleged that he was prejudiced in any way by the brief delay. Under these circumstances, dismissal is unwarranted. Id. See also Arroyo v. Wheat, 102 F.R.D. 516, 518 (D.Nev.1984) (“ ‘Good cause’ ” was shown where “the first service was technically incorrect and the second service was made diligently after the plaintiffs learned of the ineffectiveness of their first attempts. Walden v. Tulsair Beechcraft, Inc., 96 F.R.D. 34, 29 [sic] (W.D.Ark.1982).”) Arroyo also cites to cases in which “there was no dilatory or willful delay” and in which “plaintiff’s abortive efforts [were] bona fide,” as illustrations of situations in which “good cause” has been found to exist. Id. at 518. In other cases courts have dismissed actions where, despite the fact that service had been made prior to the court’s decision, service was not made within 120 days of the filing of the complaint. See, e.g., Burks v. Griffith, 100 F.R.D. 491, 492 (N.D.N.Y.1984) (averment “that at the present time all defendants have been served” held insufficient to constitute good cause where no “reason [given] for the failure of plaintiffs to timely serve” and where “plaintiffs never sought extensions of time from this court to serve outside the 120 time [sic] period”); Sanders v. Marshall, 100 F.R.D. 480, 482 (W.D.Pa.1984) (complaint dismissed where service accomplished on 158th day); Coleman v. Greyhound Lines, Inc., 100 F.R.D. 476, 477-78 (N.D.Ill.1984) (complaint dismissed where service made on 180th day and where there was no reason timely service could not have been obtained). Cf. Consolidation Coal Co. v. Disabled Miners, 442 F.2d 1261, 1267-68 (4th Cir.), cert. denied, 404 U.S. 911, 92 S.Ct. 228, 30 L.Ed.2d 184 (1971), decided well before Rule 4(j) was amended to its present form. In addition to the reasonableness and diligence inquiry, the question" }, { "docid": "14640069", "title": "", "text": "‘good cause’ are really no cause at all____ [Pjrior counsel’s so-called ‘inadvertence’ is precisely the factor the Rule was aimed at. Its entire focus was to force plaintiffs’ (more realistically their lawyers’) diligence in order to preserve causes of action against limitations problems. Id. at H9851.”). As to failure on the plaintiffs part to explain exactly why service has been timely effected, see Sanders v. Marshall, 100 F.R.D. 480, 481-82 & nn. 4-6 (W.D.Pa.1984), in which the action was accordingly dismissed. In Geller v. Newell, 602 F.Supp. 501 (S.D.N.Y.1984), the Court held that the “good cause” exception to dismissal under Federal Civil Rule 4(j) was met because as soon as plaintiff had learned that defendant’s agent was no longer authorized to accept service of process, plaintiff made extensive inquiries about defendant’s whereabouts and “prompt arrangements” for personal service. Service was effected 14 days after the 120-day deadline. Id. at 502. The Court wrote: While it would be prudent for a plaintiff who will be unable to complete service within the statutory period to move for an enlargement of time under Rule 6(b) prior to the running of the 120 days, the failure to do so does not mandate dismissal under Rule 4(j). In this case, plaintiff was diligent in his efforts to serve defendant and he did, in fact, complete service only 14 days after the deadline. Defendant has not alleged that he was prejudiced in any way by the brief delay. Under these circumstances, dismissal is unwarranted. Id. See also Arroyo v. Wheat, 102 F.R.D. 516, 518 (D.Nev.1984) (“ ‘Good cause’ ” was shown where “the first service was technically incorrect and the second service was made diligently after the plaintiffs learned of the ineffectiveness of their first attempts. Walden v. Tulsair Beechcraft, Inc., 96 F.R.D. 34, 29 [sic] (W.D.Ark.1982).”) Arroyo also cites to cases in which “there was no dilatory or willful delay” and in which “plaintiff’s abortive efforts [were] bona fide,” as illustrations of situations in which “good cause” has been found to exist. Id. at 518. In other cases courts have dismissed actions where, despite the" }, { "docid": "23671971", "title": "", "text": "of prejudice as a pertinent factor in determining whether good cause exists. See, e.g., United States v. Jack Cozza, Inc., 106 F.R.D. 264, 268 (S.D.N.Y.1985); Geller v. Newell, 602 F.Supp. at 502; Peters v. E.W. Bliss Co., 100 F.R.D. 341, 343 (E.D.Pa.1983). None of these decisions discusses the rationale for considering lack of prejudice as relevant-to a determination of good cause. However, it would seem appropriate that a determination of “good cause”, which is a legal term traditionally broadly defined, should take into account an equitable consideration such as hardship—or lack thereof—to the defendant. Accordingly, any lack of prejudice will be considered a relevant factor here. Another factor which some courts have considered in determining whether good cause has been established is whether or not the plaintiff has moved under Fed.R.Civ.P. 6(b) for an enlargement of time in which to effect service. See, e.g., Norlock v. City of Garland, 768 F.2d 654, 658 (5th Cir.1985); Quann, 112 F.R.D. at 661 (citing cases). An application for enlargement of time in which to serve might well reflect a plaintiff’s diligence in trying to effect service. However, failure to make such a motion certainly is not by itself fatal to a plaintiff’s efforts to establish good cause. See Geller, 602 F.Supp. at 502 (“While it would be prudent for a plaintiff who will be unable to complete service within the statutory period to move for an enlargement of time under Rule 6(b) prior to the running of the 120 days, the failure to do so does not mandate dismissal under Rule 4(j).”) Finally, a factor which must be considered with regard to Gordon action only is that Gordon was filed on March 3, 1982, almost a year before the effective date of the FRCPAA, which was February 26, 1983. Neither Fustok nor plaintiffs has addressed the issue of whether Rule 4(j)’s 120-day service requirement should be applied to Gordon. The FRCPAA provided that the amendments to Rule 4 would not become effective until forty-five days after enactment of the statute. The section-by-section analysis states that “[t]he delayed effective date means that service of" }, { "docid": "23301548", "title": "", "text": "one commentator who has written on the Rule's perils, and a legislative history that provides only a single (and most obvious) illustration of “good cause” — the putative defendant’s “evasion of service.” 128 Cong.Rec. H 9849, H 9852 n. 25 (daily ed. Dec. 15, 1982) (section-by-section analysis of the 1982 amendments to the Rules, submitted by Rep. Edwards). In this case the reasons advanced as “good cause” are really no cause at all. As for the 69 days of inaction from May 4 to July 12, prior counsel’s so-called “inadvertence” is precisely the factor the Rule was aimed at. Its entire focus was to force plaintiffs’ (more realistically their lawyers’) diligence in order to preserve causes of action against limitations problems. Id. at H 9851. And even if it were assumed Coleman’s new lawyer is not to be charged with constructive knowledge of the delinquency before he actually learned of the non-service on August 24, eight days then still Special Statute of Limitations Precautions, 96 F.R.D. 88, 90, 101-15 (1983). remained to effect service within the Rule 4(j) limit. There is no hint of any reason timely service could not then have been obtained. If that were in fact a problem, Coleman had available to him — but did not file — a Rule 6(b) motion to extend the time period (that procedure is specifically referred to in the legislative history: 128 Cong.Rec. at H 9852 (section-by-section analysis) and H 9855 (notes of the Advisory Committee on the Federal Rules of Civil Procedure)). Conclusion Under Rule 4(j) Coleman bears the burden of showing “good cause” for failure to serve Union within the Rule’s ample 120-day time period. He has failed to meet that burden in this case. Both the legislative history’s section-by-section analysis (128 Cong.Rec. at H 9852) and the Advisory Committee’s notes (id. at H 9855) mandate dismissal. Accordingly this Court dismisses the Complaint against Union without prejudice. . Coleman’s Complaint ¶[ 2 also asserts his claim is based on the Thirteenth Amendment, though neither count of the Complaint explains how the Amendment is implicated. This opinion need not" }, { "docid": "22257442", "title": "", "text": "by Fed.R.Civ.P. 4(j) is to be strictly applied, and if service of the summons and the complaint is not made in time and the plaintiff fails to demonstrate good cause for the delay “the court must dismiss the action as to the unserved defendant.” 128 Cong.Rec. H9848, 9850 (daily ed. Dec. 15, 1982) (emphasis added), reprinted in 1982 U.S. Code Cong. & Admin.News 4434, 4441. It was in accordance with the strict interpretation of the 120-day rule intended by its drafters that the district court concluded that good cause had not been shown to excuse the plaintiff’s delay. Legislative history provides only one example where an extension for good cause would be permissible — specifically when the defendant intentionally evades service of process. 128 Cong.Rec. H9848, 9852 n. 25 (daily ed. Dec. 15, 1982), reprinted in 1982 U.S. Code Cong. & Admin.News 4434, 4446 n. 25. “Half-hearted” efforts by counsel to effect service of process prior to the deadline do not necessarily excuse a delay, even when dismissal results in the plaintiff's case being time-barred due to the fact that the statute of limitations on the plaintiff’s cause of action has run. See United States For Use of DeLoss v. Kenner General Contractors, Inc., 764 F.2d 707, 710 (9th Cir.1985). Furthermore, when a delay is the result of inadvertance of counsel, it need not be excused. See Wei, 763 F.2d at 372. Similarly, when there is a lack of diligent effort to ensure timely service of process, an extension of the time for service may be refused. See Coleman v. Greyhound Lines, Inc., 100 F.R.D. 476, 477-78 (N.D.Ill.1984). The strictly-applied time limit of Fed.R.Civ.P. 4(j) and the requirement of Fed.R.Civ.P. 6(a) that the plaintiff and his counsel ensure timely service of process combine to require that the plaintiff and his counsel be denied the luxury of sitting back and waiting until the 120-day period expires before ensuring that process has been served upon the defendant. When the 120-day period reaches its expiration and adequate proof of service of process has not been received, the plaintiff must take additional steps to" }, { "docid": "23671966", "title": "", "text": "to encourage prompt movement of civil actions in the federal courts. 1982 U.S. Code Cong. & Ad.News at 4442; 96 F.R.D. at 120. This passage has been interpreted broadly as an indication that Congress intended that the complaint of a diligent plaintiff who has made reasonable efforts to effect service should survive a motion to dismiss. See Getter, 602 F.Supp. at 502 (“Where plaintiff has made a reasonable effort to serve defendant, Congress intended that the 120 day deadline be extended.”); Quann v. Whitegate-Edgewater, 112 F.R.D. 649, 659 (D.Md.1986) (“Rule 4(j) leads this court to examine the reasonableness and diligence of plaintiff’s efforts to serve process.”). However, it less clear where the line should be drawn between reasonable and “inadvertent” non-service. Clearly, a lawyer’s failure to serve within the 120-day limit is “inadvertent” when it results from failure to remember to serve, see, e.g., Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir.1985); Coleman v. Greyhound Lines, Inc., 100 F.R.D. 476 (N.D.Ill.1984), or when the lawyer gives no reason at all for the delay, see, e.g., Burks v. Griffith, 100 F.R.D. 491, 492 (N.D.N.Y.1984). What is less clear is whether the “good cause” exception covers the situation where the plaintiff has made one or more reasonable and good faith efforts at service within the 120-day limit but has been unsuccessful, either through his own mistake, or through adverse circumstances. Some courts have found good cause where there has been a good faith but unsuccessful effort at timely service but these have generally been cases where the ineffective service was promptly followed by effective service. In Getter v. Newell, 602 F.Supp. at 501, for instance, plaintiff had effected service on a person who had been the defendant’s agent but no longer was. After discovering the mistake, plaintiff made immediate efforts to locate the defendant and served him as soon as he was located, three months after the defective service and only fourteen days beyond the 120-day limit. The court denied the Rule 4(j) motion to dismiss, stating that “[t]he harsh sanction of Rule 4(j) is appropriate to those cases" }, { "docid": "14640068", "title": "", "text": "to perfect service properly on defendant or to suffer a dismissal for want of prosecution.”). Courts have differed as to what is evidence of reasonableness and diligence sufficient to support a finding of “good cause.” The legislative history indicates that a putative defendant’s “evasion of service” in the face of a plaintiffs attempt to effect such service would constitute good cause, and courts have held accordingly. See Prather v. Raymond Construction Co., 570 F.Supp. 278, 282 (N.D.Ga.1983) (“While it is true that plaintiff has not perfected service upon defendant, plaintiff had good cause for not perfecting service____ [Defendant has in effect evaded service by failing to return the acknowledgement of service.”); Coleman v. Greyhound Lines, Inc., 100 F.R.D. at 477 (N.D.Ill.1984) (“[LJegislative history ... provides only a single (and most obvious) illustration of ‘good cause’ — the putative defendant’s ‘evasion of service.’ 128 Cong.Rec. H 9849, H 9852 n. 25 (daily ed. Dec. 15, 1982) (section-by-section analysis of the 1982 amendments to the Rules, submitted by Rep. Edwards). In this ease the reasons advanced as ‘good cause’ are really no cause at all____ [Pjrior counsel’s so-called ‘inadvertence’ is precisely the factor the Rule was aimed at. Its entire focus was to force plaintiffs’ (more realistically their lawyers’) diligence in order to preserve causes of action against limitations problems. Id. at H9851.”). As to failure on the plaintiffs part to explain exactly why service has been timely effected, see Sanders v. Marshall, 100 F.R.D. 480, 481-82 & nn. 4-6 (W.D.Pa.1984), in which the action was accordingly dismissed. In Geller v. Newell, 602 F.Supp. 501 (S.D.N.Y.1984), the Court held that the “good cause” exception to dismissal under Federal Civil Rule 4(j) was met because as soon as plaintiff had learned that defendant’s agent was no longer authorized to accept service of process, plaintiff made extensive inquiries about defendant’s whereabouts and “prompt arrangements” for personal service. Service was effected 14 days after the 120-day deadline. Id. at 502. The Court wrote: While it would be prudent for a plaintiff who will be unable to complete service within the statutory period to move for" }, { "docid": "14640077", "title": "", "text": "any failure to effect service within the time limits of Rule 4(j). Joint Submission Regarding Service Issues, 112, dated June 17, 1985. Thus, this case would appear to boil down to inadvertence on the part of counsel — a factor which in and of itself does not constitute good cause under Rule 4(j). See Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir.1985) (per curiam) (citing cases); Ruley v. Nelson, 106 F.R.D. 514, 518 (D.Nev.1985) (citing cases). In Coleman v. Greyhound Lines, Inc., 100 F.R.D. at 477-78, the Court refused to grant an extension of time, holding that plaintiff’s change of lawyers was an unacceptable excuse for failure to effect timely service, and noting that the 69 days of inaction, or “prior counsel’s so-called ‘inadvertence[,]’ is precisely the factor the Rule was aimed at.” Id. at 477. Moreover, as is also true in the within case, once counsel became aware of a service problem, there was no reason why service could not have been made within the remaining time. Id. at 477-78. Under Rule 4, plaintiff bears the burden of establishing the validity of service once service has been contested, see Norlock v. City of Garland, 768 F.2d 654, 656 (5th Cir.1985), or of demonstrating good cause for any delay. Coleman v. Greyhound Lines, Inc., 100 F.R.D. at 478. Herein, the mail service on the partnership and the mail and personal service on the individual defendants were insufficient pri- or to February 13, 1984. And, as stressed supra, plaintiff has failed to show “good cause” why service was not made within the time period provided by the rule. Under such circumstances, Rule 4(j) requires that the within cause of action shall be dismissed. The language of Rule 4 itself suggests that dismissal is mandatory. Rule 4© provides that “[i]f a service of the summons and complaint is not made ... within 120 days after the filing of the complaint ..., the action ... shall be dismissed as to that defendant without prejudice____” (Emphasis added.) See also H.R. 7154, 97th Cong., 2d Sess., 128 Cong.Rec. H 9848, reprinted in 1982 U.S.Code" }, { "docid": "23301547", "title": "", "text": "upon the court’s own initiative with notice to such party or upon motion. This subdivision shall not apply to service in a foreign country pursuant to subdivision (i) of this rule. Service on Union was made 60 days after expiration of Rule 4(j)’s 120-day period. That fact calls the Rule’s second level inquiry into play: whether Coleman has shown “good cause” for the lack of timely service. Coleman’s only “good cause” submission (Mem. 1) says he changed lawyers, and his new counsel (who appeared of record July 12) did not discover the “inadvertent” non-service until an August 24 deposition. Coleman’s new lawyer assertedly exercised “due diligence” in obtaining service after that: The summons was filed September 13 but service was not actually completed until October 31 (Mem. 1 refers to “two (2) attempts to serve [Union]).” Because Rule 4(j) is so new, this Court writes on an entirely clean slate. Neither party cites any authority. Research by this Court’s law clerk and this Court itself has panned no gold: not a single decided case, only one commentator who has written on the Rule's perils, and a legislative history that provides only a single (and most obvious) illustration of “good cause” — the putative defendant’s “evasion of service.” 128 Cong.Rec. H 9849, H 9852 n. 25 (daily ed. Dec. 15, 1982) (section-by-section analysis of the 1982 amendments to the Rules, submitted by Rep. Edwards). In this case the reasons advanced as “good cause” are really no cause at all. As for the 69 days of inaction from May 4 to July 12, prior counsel’s so-called “inadvertence” is precisely the factor the Rule was aimed at. Its entire focus was to force plaintiffs’ (more realistically their lawyers’) diligence in order to preserve causes of action against limitations problems. Id. at H 9851. And even if it were assumed Coleman’s new lawyer is not to be charged with constructive knowledge of the delinquency before he actually learned of the non-service on August 24, eight days then still Special Statute of Limitations Precautions, 96 F.R.D. 88, 90, 101-15 (1983). remained to effect service within" }, { "docid": "14640065", "title": "", "text": "defendants occurred on or about February 23, 1984, more than 120 days after this suit was filed. Federal Civil Rule 4(a) provides that plaintiff or plaintiff’s attorney is “responsible for prmopt service of the summons and ... complaint.” Federal Civil Rule 4(j) provides: 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 such motion. (Emphasis added.) Accordingly, the two February attempts at service, while as indicated supra may or may not have been valid, are irrelevant to the question of whether this Court should dismiss this case unless plaintiff can show good cause for failure to effect timely service prior to expiration of the Rule 4© 120-day period. In fact, the parties have so agreed. See Joint Submission Regarding Service Issues, 113, dated June 17, 1985. In that context, it is clear that regardless of whether either or both of the two February attempts at service were valid, this Court must focus first on whether plaintiff can show good cause for not effectuating valid service prior to February 13, 1984, — the end of the 120-day period. Only if plaintiff can show such good cause may this Court reach any other question herein. Federal Civil Rule 4© does not define “good cause.” However, some guidance is provided by the legislative history concerning the 1982 amendments to Rule 4. H.R. 7154, 97th Cong., 2d Sess., 128 Cong.Rec. H 9848, reprinted in 1982 U.S.Code Cong. & Ad.News 4434, 4440-42. That report indicates that if a plaintiff has not been diligent in his efforts to serve defendants), plaintiffs action should be dismissed without prejudice. If, however, the plaintiff has made reasonable efforts to effect service, then the plaintiff can move under Rule 6(b) to enlarge the time within which to serve or can" } ]

[ { "docid": "22744941", "title": "", "text": "with the other, and thereupon he had been convicted of the former and acquitted of the latter. Plainly enough, his substantial rights would not have been affected. The situation supposed and that under consideration differ greatly in form; but do they differ in real substance? The proof here in respect of the conspiracy with which Berger was not connected may, as to him, be regarded as incompetent; but we are unable to find anything in the facts — which are fairly stated by the court below — or in the record from which it reasonably can be said that the proof operated to prejudice his case, or that it came as a surprise; and certainly the fact that the proof disclosed two conspiracies instead of one, each within the words of the indictment, cannot prejudice his defense of former acquittal of the one or former conviction of the other, if he should again be prosecuted. In Washington & Georgetown R. Co. v. Hickey, 166 U. S. 521, 531, this court said that “ no variance ought ever to be regarded as material where the allegation and proof substantially correspond, or where the variance was not of a character which could have misled the defendant at the trial.” This was said in a civil case, it is true, but it applies equally to a criminal case if there be added the further requisite that the variance, be not such as to deprive the accused of his right to be protected' against another prosecution for the same offense. See Meyers v. United States, 3 F. (2d) 379, 380; Mansolilli v. United States, 2 F. (2d) 42, 43. We do not mean to say that a variance such as that here dealt with might not be material in a different case. We simply hold, following the view of the court below, that applying § 269 of the Judicial Code, as amended, to the circumstances of this case the variance was not prejudicial and hence not fatal. 2. That the United States prosecuting attorney overstepped the bounds of that propriety and fairness which should" } ]

[ { "docid": "9414365", "title": "", "text": "CARSWELL, District Judge. Two separate indictments charged appellant with violations of internal revenue laws relating to moonshine whiskey. On his own motion the cases were consolidated for trial. This appeal is taken following his conviction on certain counts of each indictment with four errors asserted, the first two of which require exam- ■¡nation of the evidence, the third involves alleged prejudicial remarks by the United States Attorney, and the last attacks one aspect of trial court’s instruction to the jury. We find no merit in any of these contentions and affirm the judgment of the district court. First, was there a fatal variance between the conspiracy alleged in one of the indictments and the facts adduced on trial ? The core of appellant’s argument in this regard is that the evidence actually showed two distinct conspiracies while only one was stated in the language of the indictment. Even accepting this to be so, the law is well settled that such a variance is not necessarily fatal. The leading case in this area is Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). It is noted initially that all of the authority presented by appellant for the proposition that such variance is fatal was decided prior to Berger. The Supreme Court at' page 81, 55 S.Ct. at page 630, in that case held that the proposition that a variance is fatal per se “ignores the question of materiality, and should be so qualified as to make the result of the variance depend upon whether it has substantially injured the defendant.” The evidence in Berger established two separate conspiracies while the indictment charged but one. The only connecting link in Berger between the two conspiracies was a person, not the appellant, who was involved in both. The Supreme Court held that Berger was not surprised by the proof nor did the proof prejudice him, noting at page 82, 55 S.Ct. at page 630: “The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to" }, { "docid": "13471251", "title": "", "text": "v. United States, supra, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314, illustrates, a definitive answer to whether a variance existed is not always necessary to decide whether reversal on variance grounds is mandated. Holding a variance not prejudicial and thus not fatal, Berger stated that a reviewing court’s primary focus should center “on whether there has been such a variance as to affect the substantial rights of the accused.” Id. at 82, 55 S.Ct. at 630. We turn then to the second question at issue: If the variance existed, did it affect the substantial rights of the accused? In Kotteakos v. United States, supra, 328 U.S. at 759, 66 S.Ct. at 1245, the Supreme Court reversed the convictions of two defendants convicted under a federal conspiracy statute. There, the government proved eight conspiracies while charging only one. Citing the large number of conspiracies and the fact that the trial had at one juncture involved thirty-two defendants, the Court held that the variance created sufficient potential for prejudice to preclude a finding of harmless error. The circumstances in the case at bar did not create the same potential for prejudice to appellants as existed in Kotteakos. The potential for trans-ferance of guilt in Kotteakos arose from the likelihood that the jury would confuse evidence of so many different conspiracies and defendants. In this case, where the trial involved only two defendants and at most two conspiracies, transferance of guilt was much less likely. Most importantly, the trial judge below instructed the jury to disregard the South Texas evidence if they found the South Texas activities comprised a separate conspiracy. This instruction greatly decreased the potential for prejudice. Just as the court concluded in United States v. Wayman, supra, 510 F.2d at 1025, “our case is more like Berger than Kottea-kos, and we find Berger controlling.” The variance in this case, if any, did not prejudice appellants. IV. VENUE Appellants raise more than a “pedantic, justice-defeating technicality” in asserting venue related rights. As this Court has previously noted, see, e.g., United States v. White, 611 F.2d 531, 534 (5th Cir.1980)," }, { "docid": "22561627", "title": "", "text": "fails to take into account the very real possibility that one of the proven conspiracies was the single conspiracy charged.” Id. at 1107 (emphasis in original). Wahl’s requested instruction misinterprets the doctrine of variance. Variance occurs when the facts proved at trial are different than those alleged in the indictment. Variance in the proof is grounds for reversal only when it affects the defendant’s “substantial rights.” Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935); United States v. Tremont, 429 F.2d 1166, 1169 n.5 (1st Cir.), cert. denied, 400 U.S. 831, 91 S.Ct. 63, 27 L.Ed.2d 63 (1970). “Substantial rights” is a term meant to provide two basic protections to the defendant: that he have sufficiently specific information about the charges against him so that he can prepare an effective defense and will not be surprised at trial and that he not be subject to another prosecution for the same offense. Berger v. United States, 295 U.S. at 82, 55 S.Ct. at 630; United States v. Calabro, 467 F.2d 973, 983 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1357, 35 L.Ed.2d 587 (1973). In appropriate cases, the doctrine of variance also includes protection against the possibility of a prejudicial “spillover” effect, see United States v. Toliver, 541 F.2d 958, 962-63 (2d Cir. 1976); United States v. Perez, 489 F.2d 51, 60 (5th Cir. 1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). In a case involving several defendants, the court must take care that evidence against one defendant is not misinterpreted by the jury and used as the basis for convicting another defendant not connected to the evidence. If the Government proves more conspiracies than the one charged in the indictment, a defendant involved in one conspiracy may not be convicted on the basis of evidence that relates only to a separate conspiracy. In evaluating whether convictions were the result of such confusion on the part of the jury, the reviewing court must look to the number of defendants involved and the trial judge’s efforts to" }, { "docid": "15854310", "title": "", "text": "the language of Berger v. United States, 1935, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314: “The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to 'affect the substantial rights’ of the accused. The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.” Cf. Bennett v. United States, 1913, 227 U.S. 333, 338-339, 33 S. Ct. 288, 57 L.Ed. 531. In my opinion these “obvious requirements” are fully met in the case at bar even though the evidence which sustains a verdict on the charge here made might also serve as more direct proof of a charge not made. Among the claimed grounds for a new trial, the defendants assert errors of commission and omission in the instructions to the jury. In preparing the instructions, I have drawn freely upon the charge given by Judge Chesnut in United States v. Frankfeld, D.Md.1952, 103 F.Supp. 48, affirmed, 4 Cir.1952, 198 F.2d 679, as well as tire instructions of Judge Medina in United States v. Foster, S.D.N.Y.1949, 9 F.R.D. 367, 373-394; affirmed sub nom. United States v. Dennis, 2 Cir. 1950, 183 F.2d 201; affirmed 1951, 341 U. S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, and have resolved doubts as to the law in favor of the accused. [The instructions to the jury are included as an appendix hereto.] Another ground advanced in support of the motion for a new trial is the contention that publication in local newspapers and over local radio and television of news of an alleged “long-secret F.B.I. report” on the claimed objective of the Communist Party to overthrow the Government by force and violence deprived the defendants of a fair trial. This report," }, { "docid": "2499939", "title": "", "text": "his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense. Bennett v. United States, 227 U.S. 333, 338 [33 S.Ct. 288, 57 L.Ed. 531] ; Harrison v. United States, [6 Cir.,] 200 F. 662, 673; United States v. Wills, [3 Cir.,] 3F.2d 855, 856-857. Cf. Hagner v. United States, 285 U.S. 427, 431-433 [52 S.Ct. 417, 76 L.Ed. 861], * •* -X- * * -X- “In Washington & Georgetown R. Co. v. Hickey, 166 U.S. 521, 531, [17 S.Ct. 661, 665, 41 L.Ed. 1101,] this court said that ‘no variance ought eyer to be regarded as material where the allegation and proof substantially correspond, or where the variance was not of a character which could have misled the defendant at the trial.’ ” In view of the short period of the operation of the Bettendorf store, and the testimony of the appellants’ employee Dorothy Walton who was hired by them for the specific purpose of conducting mailings during this period, we cannot say that the appellants were misled or prejudiced by the variance between the proof and charges in the indictment. United States v. Edwards, 2 Cir., 1966, 366 F.2d 853, 871-872, cert. denied, sub nom. Jakob v. United States, 386 U.S. 908, 87 S.Ct. 852, 17 L.Ed.2d 782. Cf., United States v. Doyle, 2 Cir., 1965, 348 F.2d 715, 719, n. 3, cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84. Appellants rely upon United States v. Critchley, 3 Cir., 1965, 353 F.2d 358, 361-362, to support their contention that the indictment was amended by the variance and that the variance was prejudicial. There the court rejected the government’s contention that the jury verdict was supported by threats on August 10th and October 5th because the indictment confined its allegations of wrongdoing to October 7th and 8th. In answer, we note that Critchley was a Hobbs Act case in which it is necessary to prove interference with commerce and extortion. The result in Critchley may be consistent with" }, { "docid": "2499938", "title": "", "text": "S.Ct. 1106, 86 L.Ed. 1752 (1942). The indictment informed appellant fully and correctly of the offenses with which he was charged, he was not misled in making his defense and was in no way prejudiced by the claimed variance.” See, Baker v. United States, 9 Cir., April 4, 1968, 393 F.2d 604. Cf., Alexander v. United States, 8 Cir., 1959, 271 F.2d 140, 143. The Supreme Court’s decision in Berger v. United States, 1935, 295 U.S. 78, 83, 55 S.Ct. 629, 79 L.Ed. 1314, is consistent with the result obtained here, as the court there stated at 295 U.S. 82-83, 55 S.Ct. 630: “ * * * The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the accused. The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused, shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense. Bennett v. United States, 227 U.S. 333, 338 [33 S.Ct. 288, 57 L.Ed. 531] ; Harrison v. United States, [6 Cir.,] 200 F. 662, 673; United States v. Wills, [3 Cir.,] 3F.2d 855, 856-857. Cf. Hagner v. United States, 285 U.S. 427, 431-433 [52 S.Ct. 417, 76 L.Ed. 861], * •* -X- * * -X- “In Washington & Georgetown R. Co. v. Hickey, 166 U.S. 521, 531, [17 S.Ct. 661, 665, 41 L.Ed. 1101,] this court said that ‘no variance ought eyer to be regarded as material where the allegation and proof substantially correspond, or where the variance was not of a character which could have misled the defendant at the trial.’ ” In view of the short period of the operation of the Bettendorf store, and the testimony of the appellants’ employee Dorothy Walton who was hired by them for the specific purpose of conducting" }, { "docid": "2054397", "title": "", "text": "Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935): The true inquiry ... is not whether there has been a variance in proof, but whether there has been such a variance as to “affect the substantial rights” of the accused. The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense. Relying on this precedent, the Court of Appeals for this Circuit has stated that the “accepted rule is that a variance does not call for dismissal of the indictment except upon a showing of prejudice. ” Gaither v. United States, 134 U.S.App.D.C. 154, 165, 413 F.2d 1061, 1072 (1969) (emphasis added). There can be no doubt that neither of the defendants has suffered any prejudice whatsoever by the digital error in Count II of the indictment. The courts that have confronted cases similar to the instant one have focused on two interrelated considerations in determining whether an error in the indictment prejudiced the defendant and thereby warranted dismissal of the indictment. These considerations are: (1) whether the defendant was apprised and had knowledge of the nature of the charge against him; and (2) whether the defendant was prejudiced in the preparation of his defense by the error in the indictment. Consideration of both of these factors demonstrates conclusively that the defendants herein have not been prejudiced by the error in the closing date in Count II of the instant indictment. First, defendants have at all times known that the crime(s) with which they were charged were based on their activities during the fall of 1975 and the winter of 1976, and they were therefore at no time misled into believing that the Government relied on evidence of their activities only until March 11, 1975. The indictment itself compels" }, { "docid": "21623437", "title": "", "text": "conspiracy formed and that Lester joined the conspiracy “on or before April 15, 1983.” Lester notes that the government did not allege that any of the overt acts set forth in the indictment took place on or before April 15; moreover, Lester asserts that the activities in which he allegedly participated — the bail discussion and the meeting at Brigham’s sister's house — occurred after April 15. Accordingly, Lester argues that there was an irreconcilable and prejudicial discrepancy between the evidence and the jury instructions. We disagree. Even assuming that the bail meeting took place a day or two after April 15, Lester has not demonstrated that the discrepancy resulted in any prejudice, as is necessary to give such a variance legal significance. Rule 52(a) of the Federal Rules of Criminal Procedure provides, “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” The variance in the present case could not have misled Lester at trial or deprived him of his right to be protected against another prosecution for the same offense. See Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935); see also United States v. Von Stoll, 726 F.2d 584, 586-87 (9th Cir.1984) (variance between indictment and proof concerning the identity of the victim found not to affect any substantial right of the defendant); United States v. Anton, 547 F.2d 493, 496 (9th Cir.1976) (in a prosecution for possession of stolen mail, variance between indictment and proof as to whether the defendant stole the mail from an “authorized depository for mail matter” found not prejudicial). Nor is the timing of the conspiracy an integral element of the offense. It need not be proved precisely. Arnold v. United States, 336 F.2d 347, 352-53 (9th Cir.1964), cert. denied, 380 U.S. 982, 85 S.Ct. 1348, 14 L.Ed.2d 275 (1965); accord United States v. Heimann, 705 F.2d 662, 668-70 (2d Cir.1983). We conclude, therefore, that the variance claimed by Lester between the district court’s instruction and the government’s proof — assuming that such a variance indeed existed — did not" }, { "docid": "565787", "title": "", "text": "in fact the victim of the fraud was the parent company, United Companies Financial Corporation (UCFC), located in Baton Rouge. Count 1 of the indictment charged that Massey, Wages, and others “devised ... a scheme and artifice to defraud and to obtain money by means of false and fraudulent pretenses ... from [UCMM], which could and would be induced by defendants to make certain loans ...” Appellants claim that the loans were actually made by UCFC, since the checks for both loans were written on UCFC’s accounts. Where variance between the indictment and the proof at trial is alleged, a defendant is entitled to a reversal only upon a showing that the variance prejudiced his substantial rights. Berger v. United States, 295 U.S. 78, 81, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935) (“The true inquiry ... is not whether there has been a variance ... but whether there has been such a variance as to ‘affect the substantial rights’ of the accused.”); United States v. Young, 730 F.2d 221, 223 (5th Cir.1984). An indictment is sufficient if it “first, contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). See also United States v. Manotas-Mejia, 824 F.2d 360, (5th Cir.1987) (“The indictment and proof must coincide to protect the accused from (1) surprise and (2) the risk of another prosecution for the same crime.”). There is no allegation by appellants that they were surprised by the government’s proof at trial, or that the indictment was insufficient to inform them of the charges against them. The listing of the overt acts in Count 1 makes it clear that the allegations concern two specific loans, one in the name of James Clark, and one for MBM. The loan applications are specified by date, name, and amount. The checks disbursed pursuant to the loan application are identified" }, { "docid": "7026636", "title": "", "text": "Service by mailing or by causing to be mailed some matter or thing for the purpose of executing the scheme to defraud. (Tr. 305.) The instruction as given was correct in all respects. On such record, Appellant contends that the trial judge abused his discretion in denying Appellant’s motion to strike the alleged amount of proceeds. For support, Appellant relies on Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). To ascertain whether a variance is prejudicial the Supreme Court ruled that: The true inquiry, ... is not whether there has been a variance in proof, but whether there has been such a variance as to “affect the substantial rights” of the accused. The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense. Id. at 82, 55 S.Ct. at 630. In attempting to prove that his substantial rights had been affected, Appellant first maintains that the $110,000 allegation was so far in excess of the proof that it was inflammatory and tended to confuse the jury and taint its deliberations. Berger, however, is distinguishable since it involved a fatal variance where a single conspiracy was alleged in the charging portion of the indictment and the proof at trial showed the existence of two separate conspiracies. Here the questioned allegation was in the introductory paragraphs outlining the scheme rather than in the charging paragraphs of the mail fraud counts. In determining whether there has been a variance between pleading and proof it is the charging paragraphs that are to be examined. United States v. Hathaway, 534 F.2d 386, 397 (1st Cir.), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976). The instant case is also distinguishable from Berger in that the full amount of proceeds as alleged" }, { "docid": "2054396", "title": "", "text": "18 U.S.C. § 1955, and each of the elements thereof, between the dates of September 1, 1974, and March 11, 1976, and the Court therefore will deny the defendants’ motion for acquittal and will find the defendants guilty as charged with respect to Count II. I. Since Both Defendants Have At All Times Been Fully Apprised And Had Knowledge Of The Nature As Well As The Scope Of The Charge Against Them, And Since Neither Defendant Was In Any Way Prejudiced In His Preparation Of A Defense As A Result Of The Digital Error In The Indictment, The Court Will, Pursuant To Fed.R.Crim.P. 52(a), Disregard The Error And Consider All The Evidence Of Record Against The Defendants. It is settled beyond peradventure that not all variances between the charging terms of an indictment and the proof offered at trial are “fatal”; in other words, not every variance requires dismissal of the indictment or a verdict of acquittal. See United States v. Eaton, 501 F.2d 77, 79-80 (5th Cir. 1974). As the Supreme Court held in Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935): The true inquiry ... is not whether there has been a variance in proof, but whether there has been such a variance as to “affect the substantial rights” of the accused. The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense. Relying on this precedent, the Court of Appeals for this Circuit has stated that the “accepted rule is that a variance does not call for dismissal of the indictment except upon a showing of prejudice. ” Gaither v. United States, 134 U.S.App.D.C. 154, 165, 413 F.2d 1061, 1072 (1969) (emphasis added). There can be no doubt that neither of the defendants has suffered" }, { "docid": "23669775", "title": "", "text": "in Zimmermann v. Wilson, 105 F.2d 583, 586 (3 Cir. 1939), to bring its “present view” into line “with the overwhelming weight of authority.” See De Masters v. Arend, 313 F.2d 79, 85 n. 11 (9 Cir. 1963), dismissed, 375 U.S. 936, 84 S.Ct. 341, 11 L.Ed.2d 269 (1963). 3. The secondary argument that the identifying witnesses were in court only in response to an ordinary subpoena, rather than a subpoena duces tecum, is close to frivolous. No prejudice is demonstrated. The records were in the possession of the district court between the two trials. In addition, they were originally brought to the grand jury by subpoena duces tecum. We fail to see what would have been accomplished by a subpoena duces tecum for the second trial or what was lost without it. The protective provisions of 47 U.S.C. § 605 are not helpful to the defense, for the records were produced for the trial, in any event, within the statute’s exception relating to the “demand of other lawful authority.” 4. The variance between the indictment and the proof is only as to the route the mail count checks took in traveling from Decorah to LaCrosse. The indictment described each check by date, bank, payee, and amount and, where one existed, by number. The checks were in the possession of the defendants. There was no surprise as to their identity. The only conceivable difference the routing could possibly make was as to the time the check took to clear. This is a difference of degree. Furthermore, the claimed variance does not concern the seven wire counts. The Supreme Court in Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), observed that the rule that allegations and proof must correspond is based upon the obvious requirements that the accused be definitely informed as to the charges against him and that he be protected against another prosecution for the same offense. Each of these requirements is clearly satisfied here, and the variance point is without substance. Hall v. United States, 372 F.2d 603, 606-607 (8 Cir." }, { "docid": "23619026", "title": "", "text": "(1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); Bennett v. United States, 227 U.S. 333, 33 S.Ct. 288, 57 L.Ed. 531 (1912); Smiley v. United States, 186 F.2d 903 (9th Cir. 1951); Brilliant v. United States, 297 F.2d 385 (8th Cir. 1962); Marvin v. United States, 279 F.2d 451 (10th Cir. 1960); Rathbun v. United States, 236 F.2d 514 (10th Cir. 1956); Cromer v. United States, 78 U.S.App.D.C. 400, 142 F.2d 697 (1944); Harris v. United States, 140 F.2d 567 (4th Cir. 1944). Rule 52(a), Title 18 U.S.C.A., Federal Rules of Criminal Procedure, provides: “(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” (Emphasis added.) There is general agreement among the cases that in a criminal case a variance should never be regarded as material where the allegation and proof substantially correspond, where the variance is not of the character that could have misled the defendant at the trial, and where the variance is not such as to deprive the accused of his right to be protected against another prosecution for the same offense. Berger v. United States, supra, 295 U.S. at p. 83, 55 S.Ct. 629; Washington & Georgetown R. Co. v. Hickey, 166 U.S. 521, 531, 17 S.Ct. 661, 41 L.Ed. 1101 (1896). “The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the accused.” Berger v. United States, supra, 295 U.S. at p. 82, 55 S.Ct. at p. 630. Here the charge set out in the indictment was definite and informative and it is difficult to see how appellant could possibly have been unable to prepare his defense or could have been" }, { "docid": "23619027", "title": "", "text": "among the cases that in a criminal case a variance should never be regarded as material where the allegation and proof substantially correspond, where the variance is not of the character that could have misled the defendant at the trial, and where the variance is not such as to deprive the accused of his right to be protected against another prosecution for the same offense. Berger v. United States, supra, 295 U.S. at p. 83, 55 S.Ct. 629; Washington & Georgetown R. Co. v. Hickey, 166 U.S. 521, 531, 17 S.Ct. 661, 41 L.Ed. 1101 (1896). “The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the accused.” Berger v. United States, supra, 295 U.S. at p. 82, 55 S.Ct. at p. 630. Here the charge set out in the indictment was definite and informative and it is difficult to see how appellant could possibly have been unable to prepare his defense or could have been surprised. The overt acts naming him all took place in the year 1960. He was incarcerated in federal institutions for the entire period the conspiracy was alleged to have existed with the exception of a two and one-half year period from May 1958 until December 1960. Nor can it be said that this variance is such as to deprive appellant of protection against another prosecution for this same offense. Appellant was placed in jeopardy for this particular offense for the entire period set out in the indictment and restriction of the proof to a smaller period within the period set out in that indictment will not vitiate the protection against subsequent prosecution for that entire period for that same offense. Appellant’s single authority, United States v. Russano, 257 F.2d 712 (2d Cir. 1958), is inapposite for in that case the indictment charged a continuing conspiracy from 1951 to 1957 but the proof disclosed two conspiracies in those years which the indictment had lumped together thus prejudicing defendants by allowing admission of evidence not otherwise admissible." }, { "docid": "14708481", "title": "", "text": "another prosecution for the same offense. Bennett v. United States, 227 U.S. 333, 338, 33 S. Ct. 288, 57 L. Ed. 531; Harrison v. United States (C. C. A.) 200 F. 662, 673; United States v. Wills (C. A. A.) 36 F. (2d) 855, 856, 857. Cf. Hagner v. United States, 285 U. S. 427, 431-433, 52 S. Ct. 417, 76 L. Ed. 861. “In Washington & Georgetown R’d v. Hickey, 166 U. S. 521, 531, 17 S. Ct. 661, 665, 41 L. Ed. 1101, this court said that ‘no variance ought ever to be regarded as material where the allegation and proof substantially correspond, or where the variance was not of a character which could have misled the defendant at the trial.’ This was said in a civil ease, it is true, but it applies equally to a criminal case if there be added the further requisite that the variance be not such as to deprive the accused of his right to be protected against another prosecution for the same offense. See Meyers v. United States (C. C. A.) 3 F. (2d) 379, 380; Mansolilli v. United States (C. C. A.) 2 F. (2d) 42, 43.” [Emphasis supplied.] In United States v Hopf, 1 USCMA 584, 5 CMR 12, the accused was convicted of aggravated assault upon á specified Korean male. The court-martial’s findings, however, excepted the name of the victim and substituted the words “an unknown” in its place. It was contended before this Court that this constituted a fatal variance. In rejecting this contention, Chief Judge Quinn, speaking for a unanimous Court, said: “It is certainly true that, at a time in the development of the common law, extreme emphasis was placed by the courts on the use of precise and technical language in both indictments and verdicts. As a result of this elevation of form over substance, the doctrine of variance was widely and strictly applied. See State v. Ewing, 67 Wash 395, 121 P 834. Today, however, the rule is otherwise. The law is not so much concerned with the words used as with elemental" }, { "docid": "2955405", "title": "", "text": "We find nothing in Call to support the appellant. In Kotteakos, the Supreme Court found that substantial prejudice resulted to a single defendant when he and thirty-five others and eight separate conspiracies were intertwined under a single general indictment, thus (1) making it impossible to adequately prepare a defense, (2) prohibiting the trial court from giving required precautionary instructions, and (3) confusing the jurors to such an extent that they subconsciously transferred guilt from person to person or from conspiracy to conspiracy. Nothing comparable was brought to our attention in the present case. In Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935), discussed and distinguished in Kotteakos, the Court said: “The true inquiry, therefore, is not whether there has been a variance of proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the accused. The general rule that allegations and proof must correspond is based upon the requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at trial; and (2) that he may be protected against another prosecution for the same offense.” In the present case, there is no evidence that the rights of the defendant at trial were substantially affected as a result of the alleged variance. Indeed, there is no showing that his rights were affected in any manner whatsoever. As a second ground for reversal, the appellant urges that there was no proof that Commonwealth Savings and Loan Association relied on the name “Hank Schnall” or “John Schwartz” or any character or personality associated with either name in accepting the check for deposit, and that in the absence of such proof, there was no forgery within the intent of the statute. More properly stated, the question is: Given the interstate transportation of the check and the necessary fraudulent intent, is the use of fictitious names as drawer, payee and endorser in this case sufficient to make" }, { "docid": "14708480", "title": "", "text": "it unnecessary to decide this question since the variance, if any, was of a nonfatal variety. Assuming, however, that the analysis of the board of review is correct and that a variance in fact existed, the critical question is one of prejudice. The Supreme Court of the United States, in- the leading and oft-cited case of Berger v United States, 295 US 78, 55 S Ct 629, 79 L ed 1314Í in holding that a variance between indictment and the proof was immaterial, said: “The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the accused. The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense. Bennett v. United States, 227 U.S. 333, 338, 33 S. Ct. 288, 57 L. Ed. 531; Harrison v. United States (C. C. A.) 200 F. 662, 673; United States v. Wills (C. A. A.) 36 F. (2d) 855, 856, 857. Cf. Hagner v. United States, 285 U. S. 427, 431-433, 52 S. Ct. 417, 76 L. Ed. 861. “In Washington & Georgetown R’d v. Hickey, 166 U. S. 521, 531, 17 S. Ct. 661, 665, 41 L. Ed. 1101, this court said that ‘no variance ought ever to be regarded as material where the allegation and proof substantially correspond, or where the variance was not of a character which could have misled the defendant at the trial.’ This was said in a civil ease, it is true, but it applies equally to a criminal case if there be added the further requisite that the variance be not such as to deprive the accused of his right to be protected against another prosecution for the same offense. See Meyers v." }, { "docid": "9437925", "title": "", "text": "existed at the time defendant used the mails for the purpose of executing the scheme. Thus, we conclude that there is no basis for the trial court’s findings that the government had abandoned the allegations of the indictment and that there was a variance between the charges in the indictment and the proof at trial. C. Prejudice Even if we were to assume a variance between the indictment and the proof, there was absent from this trial the prejudice necessary to give legal significance to such a variance. Rule 52(a) of the Federal Rules of Criminal Procedure instructs us to disregard any “variance which does not affect substantial rights”. In the same spirit, case law instructs that variances should not be regarded as material where the allegation and proof substantially correspond, where the variance is not of a character that could have misled the defendant at the trial, and where the variance is not such as to deprive the accused of his right to be protected against another prosecution for the same offense. Berger v. United States, 295 U.S. 78, 83, 55 S.Ct. 629, 631, 79 L.Ed. 1314 (1935). We do not know what prompted the trial judge to conclude that prejudice was “obvious” and “substantial”, because he did not tell us. However, applying the above principles, we fail to see how defendant could possibly have been prejudiced. First, as we have already indicated, the proof substantially corresponded to the allegations. Second, defendant could not have been misled. By the indictment defendant was clearly apprised that his use of the mails and wires on various dates between March 2, 1980 and December 22, 1980 in furtherance of a fraudulent scheme placed in issue his intent with respect to each of the transactions to which the specific communications applied. Faced with such charges, no lawyer could seriously believe that by negating a fraudulent intent for part of the time when the scheme was alleged to exist, his client would escape criminal responsibility in the face of evidence establishing that the fraudulent intent did exist at the most relevant times: when the" }, { "docid": "4037136", "title": "", "text": "district court simply sentenced in accordance with Yancy’s admitted conduct. Yancy fails to explain how this error in the indictment arising from Alleyne’s new rule deprived him of the constitutionally required notice of the charge against him or confused him as to the potential penalties of admitting his guilt. Cf. Alleyne, 133 S.Ct. at 2160 (explaining that the rule requiring each element of the offense to appear in the indictment “ ‘enabled [the defendant] to determine the species of of-fence’ with which he was charged ‘in order that he may prepare his defence accordingly ... and that there may be no doubt as to the judgment which should be given, if the defendant be convicted.’ ” (quoting Archbold 44 (15th ed.1862))). We know of no reason to presume prejudice, as we would with a constructive amendment, e.g., Budd, 496 F.3d at 521, and appellant offers none. Further, he gives us no reason to determine that he would have changed his plea had the indictment properly charged him with brandishing under § 924(c)(l)(A)(ii). Consequently, he neither shows an error affecting his substantial rights nor persuades us that the denial of his claim will detrimentally impugn the fairness, integrity, or public reputation of judicial proceedings or otherwise result in a miscarriage of justice. See United States v. Olano, 507 U.S. 725, 735, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (“Normally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy the ‘affecting substantial rights’ prong of Rule 52(b).”); Johnson, 520 U.S. at 469-70, 117 S.Ct. 1544 (declining to remedy the Sixth Amendment error where overwhelming evidence supported the criminal element improperly decided by the district court). The Supreme Court long ago cautioned “no variance ought ever to be regarded as material where the allegation and proof substantially correspond, or where the variance was not of a character which could have misled the defendant.” Berger v. United States, 295 U.S. 78, 83, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (quoting Wash. & G.R. Co. v. Hickey, 166 U.S. 521, 531-32, 17 S.Ct. 661, 41 L.Ed. 1101" }, { "docid": "21883711", "title": "", "text": "payment from an employer who is subject to the Act. Ill DeBrouse’s remaining assignments of error require only brief discussion. We cannot accept DeBrouse’s argument that on all counts he was entitled as a matter of law to the exemption provided in § 186(c)(3). Whether his transactions with employers were “at the prevailing market price in the regular course of business” presented factual questions for the jury. The court’s instructions placed the burden of proof with respect to this issue on the prosecutor, and the evidence, viewed in the light most favorable to the government, is sufficient to sustain the verdict. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Contrary to DeBrouse’s argument, the statutory term, “in the regular course of business” in itself provides an adequate standard for determining whether the exemption applies. It therefore was unnecessary for the court to define this phrase, especially in the absence of a proffered definition by De-Brouse. IV We find no prejudicial variance between the indictment and the evidence. Rule 52(a) of the Federal Rules of Criminal Procedure provides that “[a]ny ... variance which does not affect substantial rights shall be disregarded.” In Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630-31, 79 L.Ed. 1314 (1935), the Court held that substantial rights are deemed unaffected if the following requirements are met: (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.. .. [I]f, upon an examination of the entire record, substantial prejudice does not appear, the error must be regarded as harmless. Application of these principles demonstrates that DeBrouse’s assertions of variance with respect to three counts are unfounded. A The count charging the Caprio payments, which we discussed in Part II, supra, alleged that Caprio was DeBrouse’s “nominee.” Citing Schuh Trading Co. v. CIR, 95 F.2d 404, 411" } ]

[ { "docid": "12218887", "title": "", "text": "F.2d 1474 (11th Cir.1984); United States v. Vancier, 515 F.2d 1378 (2d Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 107, 46 L.Ed.2d 82 (1975). The asserted basis for federal jurisdiction in C.G. and Vancier was the lack of state jurisdiction over the juvenile. While neither case addresses the reviewability of a certification asserting a “substantial Federal interest,” much of their reasoning is relevant here. . In both of these cases the courts noted exceptions to the rule of nonreviewability to permit review for formal compliance with § 5032 and where the juvenile has alleged that the government filed the certification in bad faith. Impounded (Juvenile R.G.), 117 F.3d 730, 731; I.D.P., 102 F.3d at 511. Similarly, the Eighth and Second Circuits have reviewed whether the charged offenses were \"crimes of violence” within the meaning of § 5032. See United States v. Doe, 49 F.3d 859 (2d Cir.1995); United States v. Juvenile Male, 923 F.2d 614 (8th Cir. 1991). (In neither case did the court consider whether the government's certification was substantively reviewable, either in general or with respect to the existence of a substantial federal interest.) None of these recognized occasions for limited review is implicated in this case. Accordingly, we do not consider the propriety of review under these circumstances. . The Fourth Circuit notes that \"the lack of a specific provision addressing judicial review is in and of itself no bar to review.” Juvenile Male #1, 86 F.3d at 1319. While this may be accurate as a general proposition, the absence of a judicial review provision takes on greater significance where, as here, the same statute expressly provides for judicial review of a different matter. See Juvenile Male # 1, 86 F.3d at 1324 (Wilkinson, C.J., concurring). Moreover, the case on which the Fourth Circuit majority relies, Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995), turned on circumstances not present here. See I.D.P., 102 F.3d at 513 n. 6; Juvenile Male # 1, 86 F.3d at 1326 n. 2 (Wilkinson, C.J., concurring). Lamagno concerned the reviewability of the Attorney General's" } ]

[ { "docid": "6346413", "title": "", "text": "on collateral review if a petitioner’s claim was never evaluated under the more stringent Chapman standard. The First, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits have all held, consistent with the government’s argument in this case, that Brecht applies regardless of whether the error complained of was ever evaluated under Chapman. See Bains v. Cambra, 204 F.3d 964, 976-77 (9th Cir.), cert. denied, — U.S. -, 121 S.Ct. 627, 148 L.Ed.2d 536 (2000); Gilliam v. Mitchell, 179 F.3d 990, 995 (6th Cir.1999), cert. denied, 528 U.S. 1120, 120 S.Ct. 945, 145 L.Ed.2d 821 (2000); Hassine v. Zimmerman, 160 F.3d 941, 950-52 (3d Cir.1998), cert. denied, 526 U.S. 1065, 119 S.Ct. 1456, 143 L.Ed.2d 542 (1999); Hogue v. Johnson, 131 F.3d 466, 498-99 (5th Cir.1997), cert. denied, 523 U.S. 1014, 118 S.Ct. 1297, 140 L.Ed.2d 334 (1998); Sherman v. Smith, 89 F.3d 1134, 1140-41 (4th Cir.1996), cert. denied, 519 U.S. 1091, 117 S.Ct. 765, 136 L.Ed.2d 712 (1997); Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir.1995), cert. denied, 516 U.S. 1123, 116 S.Ct. 936, 133 L.Ed.2d 862 (1996); Tyson v. Trigg, 50 F.3d 436, 446-47 (7th Cir.1995), cert. denied, 516 U.S. 1041, 116 S.Ct. 697, 133 L.Ed.2d 655 (1996); Horsley v. Alabama, 45 F.3d 1486, 1492 n. 11 (11th Cir.), cert. denied, 516 U.S. 960, 116 S.Ct. 410, 133 L.Ed.2d 328 (1995); Singleton v. United States, 26 F.3d 233, 236, 237 n. 9 (1st Cir.), cert. denied, 513 U.S. 1003, 115 S.Ct. 517, 130 L.Ed.2d 423 (1994). These courts first note that, while the constitutional error complained of in Brecht had been reviewed under Chapman by a state court on direct review, the Supreme Court did not limit its holding to such situations. Rather, the plain language of Brecht indicates that on collateral review generally, the more liberal harmless error standard applies. See, e.g., Hassine, 160 F.3d at 951. The question of whether there had been a previous Chapman analysis was of “minor importance to the Court’s view that the Kotteakos standard should be applied consistently in collateral proceedings.” Id. at 952; see also id. at 951" }, { "docid": "2768851", "title": "", "text": "not be cut off unless there is a persuasive reason to believe that such was the purpose of Congress.’ ” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 424, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)); see also Diebold v. United States, 961 F.2d 97, 98 (6th Cir.1992). This' Court has not yet considered whether the Attorney General’s certification that a federal juvenile prosecution presents a “substantial Federal interest,” made pursuant to 18 U.S.C. § 5032, is subject to judicial review. With only one exception, those Courts of Appeals that have confronted the question have held the text of § 5032 does not confer any power of judicial review to the courts over the factual accuracy of the Attorney General’s certification. See United States v. Smith, 178 F.3d 22, 25 (1st Cir.1999); United States v. Vancier, 515 F.2d 1378 (2nd Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 107, 46 L.Ed.2d 82 (1975); Impounded, 117 F.3d 730 (3rd Cir.1997); United States v. Juvenile No. 1, 118 F.3d 298 (5th Cir.), cert. denied, 522 U.S. 976, 118 S.Ct. 432, 139 L.Ed.2d 332 (1997); United States v. Jarrett, 133 F.3d 519, 538 (7th Cir.), cert. denied, 523 U.S. 1112, 118 S.Ct. 1688, 140 L.Ed.2d 824 (1998); United States v. Juvenile Male J.A.J., 134 F.3d 905, 906-07 (8th Cir.), cert. denied, 524 U.S. 961, 118 S.Ct. 2388, 141 L.Ed.2d 753 (1998); United States v. I.D.P., 102 F.3d 507 (11th Cir.1996); In re Sealed Case, 131 F.3d 208, 211-14 (D.C.Cir.1997). The Fourth Circuit’s decision in United States v. Juvenile Male # 1, 86 F.3d 1314 (4th Cir.1996),. is the sole opinion holding to the contrary, and Doe urges the Court to adopt its approach and hold the Attorney General’s certification is subject to judicial review. Doe maintains that the district court improperly exercised its jurisdiction because the Attorney General’s certification of substantial Federal interest in his case fails to set forth any factual allegations to support the district court’s exercise of jurisdiction. Faced with a question of statutory" }, { "docid": "18947409", "title": "", "text": "“transfer would be in' the interest of justice.” Id.; see also United States v. Hemmer, 729 F.2d 10, 17-18 (1st Cir. 1984). If the court deems a transfer would be in the interest of justice, the court may transfer the juvenile for prosecution as an adult. A. Certification Smith first contends that the district court erred in concluding that it lacked jurisdiction to review the United States Attorney’s certification made pursuant to § 5032(3) that a “substantial Federal interest” warranted federal prosecution. Although this court has not yet determined whether a court has jurisdiction to review a United States Attorney’s certification that there is a “substantial Federal interest” in a particular case, five of the six other circuits addressing this issue have held that a court may not review such a certification. See United States v. Juvenile Male J.A.J., 134 F.3d 905 (8th Cir.), cert. denied, — U.S.-, 118 S.Ct. 2388, 141 L.Ed.2d 753 (1998); In re Sealed Case, 131 F.3d 208 (D.C.Cir.1997); United States v. Juvenile No. 1, 118 F.3d 298 (5th Cir.), cert. denied, — U.S. —, 118 S.Ct. 457, 139 L.Ed.2d 391 (1997); Impounded, 117 F.3d 730 (3d Cir.1997); United States v. I.D.P., 102 F.3d 507 (11th Cir.1996). Only the Fourth Circuit has permitted judicial review of the existence of a substantial federal interest in a § 5032 certification. See United States v. Juvenile Male # 1, 86 F.3d 1314 (4th Cir.1996). We agree with the great majority of circuits that hold that “the United States Attorney’s certification of a substantial federal interest is an unreviewable act of prosecutorial discretion.” Juvenile Male J.A.J., 134 F.3d at 909. As explained more thoroughly by the Eighth Circuit in Juvenile Male J.A.J. and the Third Circuit in Impounded, the statute’s text and structure, as well as separation of powers concerns, support our conclusion that a federal court may not review a United States Attorney’s certification of a substantial federal interest. See Juvenile Male J.A.J., 134 F.3d at 906-09; Impounded, 117 F.3d at 733-37. The text of § 5032 does not specifically provide for judicial review of a certification and fails" }, { "docid": "7021949", "title": "", "text": "118 S.Ct. 457, - L.Ed.2d (1997), Impounded, 117 F.3d 730 (3d Cir.1997) (same), and United States v. I.D.P., 102 F.3d 507 (11th Cir.1996) (same), cert. denied, - U.S. -, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997), with United States v. Juvenile Male # 1, 86 F.3d 1314 (4th Cir.1996) ( 5032 certification of a substantial federal interest is reviewable). While executive actions are presumptively subject to judicial review, see Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434, 115 S.Ct. 2227, 2236, 132 L.Ed.2d 375 (1995) (noting that “traditional understandings and basic principles [are] that executive determinations generally are subject to judicial review and that mechanical judgments are not the kind federal courts are set up to render”), that presumption can be rebutted. See id. at 424, 115 S.Ct. at 2231 (“[W]e have stated time and again that judicial review of executive action will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.” (quotations omitted) (emphasis added)); see also Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530-31, 84 L.Ed.2d 547 (1985) (“So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” (quotations, citations, and alteration omitted)). The Supreme Court explained that: This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular con- eern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmak-ing to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy. All these are" }, { "docid": "2768852", "title": "", "text": "United States v. Juvenile No. 1, 118 F.3d 298 (5th Cir.), cert. denied, 522 U.S. 976, 118 S.Ct. 432, 139 L.Ed.2d 332 (1997); United States v. Jarrett, 133 F.3d 519, 538 (7th Cir.), cert. denied, 523 U.S. 1112, 118 S.Ct. 1688, 140 L.Ed.2d 824 (1998); United States v. Juvenile Male J.A.J., 134 F.3d 905, 906-07 (8th Cir.), cert. denied, 524 U.S. 961, 118 S.Ct. 2388, 141 L.Ed.2d 753 (1998); United States v. I.D.P., 102 F.3d 507 (11th Cir.1996); In re Sealed Case, 131 F.3d 208, 211-14 (D.C.Cir.1997). The Fourth Circuit’s decision in United States v. Juvenile Male # 1, 86 F.3d 1314 (4th Cir.1996),. is the sole opinion holding to the contrary, and Doe urges the Court to adopt its approach and hold the Attorney General’s certification is subject to judicial review. Doe maintains that the district court improperly exercised its jurisdiction because the Attorney General’s certification of substantial Federal interest in his case fails to set forth any factual allegations to support the district court’s exercise of jurisdiction. Faced with a question of statutory construction, we turn to , examine both the relevant statutory language and case law which serve to define the scope of federal jurisdiction under the Act. The boundaries of federal jurisdiction over juveniles are set forth in 18 U.S.C. § 5032, which provides: A juvenile alleged to have committed an act of juvenile delinquency, other than a violation of law committed within the special maritime and territorial jurisdiction of the United States for which the maximum authorized term of imprisonment does not exceed six months, shall not be proceeded against in any court of the United States unless the Attorney General, after investigation, certifies to the appropriate district court of the United States that (1) the juvenile court or other appropriate court of a State does not have jurisdiction or refuses to assume jurisdiction over said juvenile with respect to such alleged act of juvenile delinquency, (2) the State does not have available programs or services adequate for the needs of juveniles, or (3) the offense charged is a crime of violence that is a" }, { "docid": "2755527", "title": "", "text": "to the same relief as a private party, we reject the defendants’ position that the Attorney General may not elect statutory damages in this case. III. A. Commerce Clause. We now turn to the question whether FACE falls within Congress’s power under Article I, § 8 of the United States Constitution. The Commerce-Clause empowers Congress to “regulate Commerce ... among the several states.” U.S. Const., Art. I, § 8, cl. 3. Whether FACE is a proper exercise of Congress’s commerce power has been much discussed in published opinions of United States Courts of Appeals. Indeed, this is one of the last federal appellate tribunals to address the issue. After considering most, if not all, of the arguments presented by the defendants in this case, these courts held that FACE is valid under the Commerce Clause. See United States v. Hart, 212 F.3d 1067, 1074 (8th Cir.2000); United States v. Weslin, 156 F.3d 292, 296 (2d Cir.1998), cert. denied, 525 U.S. 1071, 119 S.Ct. 804, 142 L.Ed.2d 665 (1999); Hoffman v. Hunt, 126 F.3d 575, 582-88 (4th Cir.1997), cert. denied, 523 U.S. 1136, 118 S.Ct. 1838, 140 L.Ed.2d 1089 (1998); United States v. Bird, 124 F.3d 667, 672-82 (5th Cir.1997), cert. denied, 523 U.S. 1006, 118 S.Ct. 1189, 140 L.Ed.2d 320 (1998); Terry v. Reno, 101 F.3d 1412, 1415-18 (D.C.Cir.1996), cert. denied, 520 U.S. 1264, 117 S.Ct. 2431, 138 L.Ed.2d 193 (1997); United States v. Soderna, 82 F.3d 1370, 1373-74 (7th Cir.), cert. denied, 519 U.S. 1006, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996); United States v. Dinwiddie, 76 F.3d 913, 919-21 (8th Cir.), cert. denied, 519 U.S. 1043, 117 S.Ct. 613, 136 L.Ed.2d 538 (1996); United States v. Wilson, 73 F.3d 675, 679-88 (7th Cir.1995), cert. denied, 519 U.S. 806, 117 S.Ct. 47, 136 L.Ed.2d 12 (1996); Cheffer v. Reno, 55 F.3d 1517, 1519-22 (11th Cir.1995). Today, this Circuit aligns with the decisions of its sister courts of appeals and holds that FACE is a proper exercise of Congress’s Commerce Clause power. In United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), a decision" }, { "docid": "6346412", "title": "", "text": "review within the state court system.” Id. at 635, 113 S.Ct. 1710. In addition to finality, the Court spoke of comity and federalism. As the Court said, “ ‘[t]he States possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.’ ” Id. (quoting Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)). Finally, the Court recognized that liberal allowance of the writ of habeas corpus “ ‘degrades the prominence of the trial itself,’ and at the same time encourages habeas petitioners to relitigate their claims on collateral review.” Id. (citations omitted). In sum, these concerns can be characterized as (1) the state’s interest in finality, (2) comity, (3) federalism, and (4) preserving the sanctity of the trial process. Considering the implication of these four concerns, courts are not in agreement on whether Brecht applies on collateral review if a petitioner’s claim was never evaluated under the more stringent Chapman standard. The First, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits have all held, consistent with the government’s argument in this case, that Brecht applies regardless of whether the error complained of was ever evaluated under Chapman. See Bains v. Cambra, 204 F.3d 964, 976-77 (9th Cir.), cert. denied, — U.S. -, 121 S.Ct. 627, 148 L.Ed.2d 536 (2000); Gilliam v. Mitchell, 179 F.3d 990, 995 (6th Cir.1999), cert. denied, 528 U.S. 1120, 120 S.Ct. 945, 145 L.Ed.2d 821 (2000); Hassine v. Zimmerman, 160 F.3d 941, 950-52 (3d Cir.1998), cert. denied, 526 U.S. 1065, 119 S.Ct. 1456, 143 L.Ed.2d 542 (1999); Hogue v. Johnson, 131 F.3d 466, 498-99 (5th Cir.1997), cert. denied, 523 U.S. 1014, 118 S.Ct. 1297, 140 L.Ed.2d 334 (1998); Sherman v. Smith, 89 F.3d 1134, 1140-41 (4th Cir.1996), cert. denied, 519 U.S. 1091, 117 S.Ct. 765, 136 L.Ed.2d 712 (1997); Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir.1995), cert. denied, 516 U.S. 1123, 116" }, { "docid": "23248024", "title": "", "text": "case. As discussed earlier, section 5032 allows a district court to transfer a juvenile to adult status only after the Attorney General certifies that “there is a substantial Federal interest in the case or the offense.” This power has been delegated to the United States Attorneys, 28 C.F.R. § 0.57, and the U.S. Attorney for the Northern District of Illinois (on behalf of the Attorney General) certified that a substantial federal interest in this case counseled in favor of a federal prosecution. Key claims that his illegal conduct here does not rise to such a lofty level of national importance. The Government, on the other hand, argues that the substance of the Attorney General’s certification here is unreviewable by courts and, even were it reviewable, that Key’s prosecution is indeed justified by the substantial federal interest in eradicating large-scale drug trafficking operations. We agree with the Government, as well as with the majority of courts to consider this question, that we cannot substantively review the Attorney General’s certification of a substantial federal interest. See Impounded (Juvenile R.G.), 117 F.3d 730 (3rd Cir.1997); United States v. Juvenile No. 1, 118 F.3d 298 (5th Cir.), cert. denied, — U.S. -, 118 S.Ct. 432, 139 L.Ed.2d 332 (1997); United States v. I.D.P., 102 F.3d 507 (11th Cir.1996), cert. denied, - U.S. -, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997). But see United States v. Juvenile Male # 1, 86 F.3d 1314 (4th Cir.1996). Key’s second jurisdictional challenge, therefore, must fail. The language of the statute unambiguously vests this discretionary certification with the Attorney General. Section 5032 provides that there shall be no federal proceedings against a juvenile “unless the Attorney General, after investigation, certifies ... that there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.” The statute does not condition federal proceedings against a juve nile on the actual existence of a substantial federal interest; rather, the only jurisdictional requirement is that the Attorney General certify that such an interest exists. Section 5032, therefore, makes the test a subjective one — whether the" }, { "docid": "13568930", "title": "", "text": "substantial relation to interstate commerce.” Id. at 558-59, 115 S.Ct. 1624. Although these broad categories may “not satisfy those who seek mathematical or rigid formulas,” they are consistent with the modern Court’s “practical conception of commercial regulation,” id. at 573-74, 115 S.Ct. 1624 (Kennedy, J., concurring), which continues to guide the Court’s resolution of Commerce Clause challenges to federal statutes. According to Faasse, Congress lacks the power under all three Lopez categories to enact the CSRA. We disagree. The CSRA regulates exclusively interstate cases involving a debtor parent’s obligation to send court-ordered payments through interstate channels of commerce for a child residing in another state. We believe that, at the very least, the CSRA falls within Congress’s power to regulate a “thing” in interstate commerce. Nine of the ten circuits to have upheld the CSRA have held similarly. See United States v. Bongiorno, 106 F.3d 1027, 1033 (1st Cir. 1997) (upholding statute under Lopez’s category two); United States v. Sage, 92 F.3d 101, 107 (2d Cir.1996), cert. denied, 519 U.S. 1099, 117 S.Ct. 784, 136 L.Ed.2d 727 (1997); (upholding statute under category two); United States v. Johnson, 114 F.3d 476, 480 (4th Cir.), cert. denied, 522 U.S. 904, 118 S.Ct. 258, 139 L.Ed.2d 185 (1997) (upholding statute under category two); United States v. Bailey, 115 F.3d 1222, 1226 (5th Cir.1997), cert. denied, 522 U.S. 1082, 118 S.Ct. 866, 139 L.Ed.2d 764 (1998) (upholding statute under categories one and two); United States v. Black, 125 F.3d 454, 460 (7th Cir.1997), cert. denied, 523 U.S. 1033, 118 S.Ct. 1327, 140 L.Ed.2d 489 (1998) (upholding statute under category-two); United States v. Crawford, 115 F.3d 1397, 1400 (8th Cir.), cert. denied, 522 U.S. 934, 118 S.Ct. 341, 139 L.Ed.2d 264 (1997) (upholding statute under all three categories); United States v. Mussari, 95 F.3d 787, 790 (9th Cir.1996), cert. denied, 520 U.S. 1203, 117 S.Ct. 1567, 137 L.Ed.2d 712 (1997) (upholding statute under category two); United States v. Hampshire, 95 F.3d 999, 1003 (10th Cir.1996), cert. denied, 519 U.S. 1084, 117 S.Ct. 753, 136 L.Ed.2d 690 (1997) (upholding statute under categories two and three); United" }, { "docid": "2755528", "title": "", "text": "(4th Cir.1997), cert. denied, 523 U.S. 1136, 118 S.Ct. 1838, 140 L.Ed.2d 1089 (1998); United States v. Bird, 124 F.3d 667, 672-82 (5th Cir.1997), cert. denied, 523 U.S. 1006, 118 S.Ct. 1189, 140 L.Ed.2d 320 (1998); Terry v. Reno, 101 F.3d 1412, 1415-18 (D.C.Cir.1996), cert. denied, 520 U.S. 1264, 117 S.Ct. 2431, 138 L.Ed.2d 193 (1997); United States v. Soderna, 82 F.3d 1370, 1373-74 (7th Cir.), cert. denied, 519 U.S. 1006, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996); United States v. Dinwiddie, 76 F.3d 913, 919-21 (8th Cir.), cert. denied, 519 U.S. 1043, 117 S.Ct. 613, 136 L.Ed.2d 538 (1996); United States v. Wilson, 73 F.3d 675, 679-88 (7th Cir.1995), cert. denied, 519 U.S. 806, 117 S.Ct. 47, 136 L.Ed.2d 12 (1996); Cheffer v. Reno, 55 F.3d 1517, 1519-22 (11th Cir.1995). Today, this Circuit aligns with the decisions of its sister courts of appeals and holds that FACE is a proper exercise of Congress’s Commerce Clause power. In United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), a decision aptly described by this Court as changing the Commerce Clause landscape, see United States v. Parker, 108 F.3d 28, 29 (3d Cir.1997), the Supreme Court identified three broad categories of activity that Congress may regulate under its commerce power. Congress may: 1) “regulate the use of the channels of interstate commerce,” Lopez, 514 U.S. at 558, 115 S.Ct. 1624 (citations omitted); 2) “regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce even though the threat may come only from intrastate activity,” Id. (citations omitted); and 3) “regulate those activities having a substantial relation to interstate commerce ... i.e., those activities that substantially affect interstate commerce.” Id. at 558-559, 115 S.Ct. 1624 (citations omitted). Although the judicial branch is the final arbiter of the constitutionality of a statute, courts review a congressional determination that it had the power to enact a particular piece of legislation with substantial deference. See Parker, 108 F.3d at 30; United States v. Bishop, 66 F.3d 569, 576-77 (3d Cir.1995). It is not our job to" }, { "docid": "2585121", "title": "", "text": "we hold that the government’s § 5032 certification was proper and sufficient to confer jurisdiction over T.M.’s juvenile proceeding. Therefore, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion. REVERSED AND REMANDED. . The district court caption identifies the defendant as \"A.M.” In its order, the district court correctly noted that the defendant's initials are ''T.M.” Id. at 751 n. 1. . See United States v. Doe, 226 F.3d 672 (6th Cir.2000); United States v. Smith, 178 F.3d 22 (1st Cir.1999); United States v. Jarrett, 133 F.3d 519 (7th Cir.1998); United States v. Juvenile Male, J.A.J., 134 F.3d 905 (8th Cir.1998); In re Sealed Case, 131 F.3d 208 (D.C.Cir.1997); United States v. Juvenile No. 1, 118 F.3d 298 (5th Cir.1997); Impounded (Juvenile R.G.), 117 F.3d 730 (3d Cir.1997); United States v. I.D.P., 102 F.3d 507 (11th Cir.1996). . T.M. complains that the government's representation on April 19, 2004 — that the state \"refuses to assume jurisdiction\" over T.M.— was not technically correct when made because the state court did not dismiss the juvenile proceeding against T.M. until April 21, two days later. We find this timing problem immaterial. When the government made its certification on April 19, it did so based on the state prosecutor's assurance that his office intended to move the state court to dismiss the proceeding against T.M. It was important for the government to take some official action against T.M. before the state court dismissed the case to ensure that T.M. was not released from state custody once the state court proceeding was dismissed. Moreover, any technical error that might have existed in the original certification was later corrected when the government amended the information — soon after the state court proceeding was dismissed — to assert that § 5032 then provided the proper jurisdictional basis for its federal prosecution. . T.M. argues that principles of abstention and deference to the state in juvenile matters suggest that federal jurisdiction is not warranted in this case. We find this argument meritless under the particular facts and circumstances of this" }, { "docid": "18947408", "title": "", "text": "U.S.C. § 5032 for trying a juvenile in federal court and for transferring such a juvenile for prosecution as an adult. In relevant part, § 5032 provides that a district court has jurisdiction over a juvenile if “the Attorney General, after investigation, certifies to the appropriate district court of the United States that ... (3) the offense charged is a crime of violence that is a felony ... and that there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.” 18 U.S.C. § 5032. Once federal jurisdiction has attached, juvenile delinquency proceedings ensue unless the court transfers the juvenile for prosecution as an adult. If the government files a motion for transfer on the ground that the felony is a “crime of violence,” the court must hold a hearing, consider evidence of the six specific factors set forth in § 5032, and make “findings with regard to each factor ... in the record.” Id. The district court then must weigh the factors and determine whether a “transfer would be in' the interest of justice.” Id.; see also United States v. Hemmer, 729 F.2d 10, 17-18 (1st Cir. 1984). If the court deems a transfer would be in the interest of justice, the court may transfer the juvenile for prosecution as an adult. A. Certification Smith first contends that the district court erred in concluding that it lacked jurisdiction to review the United States Attorney’s certification made pursuant to § 5032(3) that a “substantial Federal interest” warranted federal prosecution. Although this court has not yet determined whether a court has jurisdiction to review a United States Attorney’s certification that there is a “substantial Federal interest” in a particular case, five of the six other circuits addressing this issue have held that a court may not review such a certification. See United States v. Juvenile Male J.A.J., 134 F.3d 905 (8th Cir.), cert. denied, — U.S.-, 118 S.Ct. 2388, 141 L.Ed.2d 753 (1998); In re Sealed Case, 131 F.3d 208 (D.C.Cir.1997); United States v. Juvenile No. 1, 118 F.3d 298 (5th Cir.), cert." }, { "docid": "1393416", "title": "", "text": "which a “substantial federal interest” certification has been made. In rejecting judicial review of the substantive decision underlying certification under 18 U.S.C. § 5032, three circuits have noted that the section “does not explicitly provide for judicial review of a certification, nor does it provide articulable standards” that a court can use to evaluate the exercise of the prosecutor’s discretion. Impounded, 117 F.3d 730, 733 (3d Cir.1997) (extensively discussing the precedents). The structure of § 5032 supports- this argument: this section expressly provides for judicial review of orders transferring a juvenile for adult prosecution and outlines standards for courts to apply, yet it is silent regarding review of certification. Seé Judge Wilkinson’s concurring opinion in Juvenile Male No. 1, 86 F.3d at 1324. On similar reasoning, most courts have held un-reviewable the bases of certification, including whether there exists an “appropriate” state court with jurisdiction over the juvenile, United States v. Vancier, 515 F.2d 1378 (2d Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 107, 46 L.Ed.2d 82 (1975); United States v. C.G., 736 F.2d 1474 (11th Cir.1984); and whether the case in fact implicates a “substantial federal interest,” Impounded, 117 F.3d at 735-36; United States v. Juvenile No. 1, 118 F.3d 298 (5th Cir.1997); United States v. I.D.P., 102 F.3d 507 (11th Cir.1996), cert. denied, - U.S. -, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997). Other than the Fourth Circuit, those circuits that have reviewed certification at all have only tested the facial adequacy of the certification against the facial requirements of § 5032. See United States v. Doe, 49 F.3d 859 (2d Cir.1995) (allowing review of whether the juvenile was charged with a crime of violence or one specifically enumerated in § 5032); United States v. Juvenile Male, 923 F.2d 614 (8th Cir.1991) (same); United States v. Gonzalez-Cervantes, 668 F.2d 1073 (9th Cir.1981) (reviewing whether the certification was timely filed by an authorized person and stated the appropriate statutory factors). Courts have also suggested that it might be appropriate to conduct a closer examination to resolve allegations of bad faith, see, e.g., United States v. C.G., 736 F.2d" }, { "docid": "15068052", "title": "", "text": "for injunctive relief. II. This court reviews a district court’s dismissal of a complaint de novo. Moore v. City of Harriman, 272 F.3d 769, 771 (6th Cir.2001) (en banc). All of our sister circuits to address First Amendment facial challenges to the Act have upheld the Act. United States v. Gregg, 226 F.3d 253, 267 (3d Cir.2000), cert. denied, 532 U.S. 971, 121 S.Ct. 1600, 149 L.Ed.2d 467 (2001); United States v. Weslin, 156 F.3d 292, 297 (2d Cir.1998), cert. denied, 525 U.S. 1071, 119 S.Ct. 804, 142 L.Ed.2d 665 (1999), United States v. Bird, 124 F.3d 667, 683-84 (5th Cir.1997), cert. denied, 523 U.S. 1006, 118 S.Ct. 1189, 140 L.Ed.2d 320 (1998); Terry v. Reno, 101 F.3d 1412, 1418-1421 (D.C.Cir.1996), cert. denied, 520 U.S. 1264, 117 S.Ct. 2431, 138 L.Ed.2d 193 (1997); United States v. Sodema, 82 F.3d 1370, 1374-77 (7th Cir.), cert. denied, 519 U.S. 1006, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996); United States v. Dinwiddie, 76 F.3d 913, 921-24 (8th Cir.), cert. denied, 519 U.S. 1043, 117 S.Ct. 613, 136 L.Ed.2d 538 (1996); Cheffer v. Reno, 55 F.3d 1517, 1521-22 (11th Cir.1995); American Life League, Inc. v. Reno, 47 F.3d 642, 648-52 (4th Cir.1995), cert. denied, 516 U.S. 809, 116 S.Ct. 55, 133 L.Ed.2d 19 (1995). Finding their analyses persuasive, we join this uniform line of decisions and hold that the Act does not, on its face, violate the First Amendment. A. Plaintiffs argue that the Act only restricts the speech of abortion opponents, and is therefore a content-based restriction. A statute that regulates speech or conduct “based on hostility — or favoritism — toward the underlying message expressed” is content-based. R.A.V. v. City of St. Paul, 505 U.S. 377, 386, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). The Act, however, does not directly apply to speech, but rather prohibits three types of conduct — use of force, threat of force, and physical obstruction — which are not protected by the First Amendment. See Wisconsin v. Mitchell, 508 U.S. 476, 484, 113 S.Ct. 2194, 124 L.Edüd 436 (1993) (“[A] physical assault is not by any stretch" }, { "docid": "23248025", "title": "", "text": "(Juvenile R.G.), 117 F.3d 730 (3rd Cir.1997); United States v. Juvenile No. 1, 118 F.3d 298 (5th Cir.), cert. denied, — U.S. -, 118 S.Ct. 432, 139 L.Ed.2d 332 (1997); United States v. I.D.P., 102 F.3d 507 (11th Cir.1996), cert. denied, - U.S. -, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997). But see United States v. Juvenile Male # 1, 86 F.3d 1314 (4th Cir.1996). Key’s second jurisdictional challenge, therefore, must fail. The language of the statute unambiguously vests this discretionary certification with the Attorney General. Section 5032 provides that there shall be no federal proceedings against a juvenile “unless the Attorney General, after investigation, certifies ... that there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.” The statute does not condition federal proceedings against a juve nile on the actual existence of a substantial federal interest; rather, the only jurisdictional requirement is that the Attorney General certify that such an interest exists. Section 5032, therefore, makes the test a subjective one — whether the Attorney General’s investigation reveals to him/her a substantial federal interest — -rather than an objective one. There is no congressional invitation for the courts to make a separate assessment. It is true that courts generally are reluctant to abdicate the power of review. For this reason, the Supreme Court has “stated time and again that judicial review of executive action “will not be cut off unless there is a persuasive reason to believe that such was the purpose of Congress.’” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 424, 115 S.Ct. 2227, 2231, 132 L.Ed.2d 375 (1995) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967)). We conclude that § 5032 exhibits the requisite persuásive signs that Congress did not envision judicial oversight of the Attorney General’s certification decisions. Judicial review is not usually conditioned on the existence of a specific statutory license to that effect. An absence of such a provision, however, becomes important when the same statute does expressly authorize judicial review of another matter." }, { "docid": "1393417", "title": "", "text": "1474 (11th Cir.1984); and whether the case in fact implicates a “substantial federal interest,” Impounded, 117 F.3d at 735-36; United States v. Juvenile No. 1, 118 F.3d 298 (5th Cir.1997); United States v. I.D.P., 102 F.3d 507 (11th Cir.1996), cert. denied, - U.S. -, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997). Other than the Fourth Circuit, those circuits that have reviewed certification at all have only tested the facial adequacy of the certification against the facial requirements of § 5032. See United States v. Doe, 49 F.3d 859 (2d Cir.1995) (allowing review of whether the juvenile was charged with a crime of violence or one specifically enumerated in § 5032); United States v. Juvenile Male, 923 F.2d 614 (8th Cir.1991) (same); United States v. Gonzalez-Cervantes, 668 F.2d 1073 (9th Cir.1981) (reviewing whether the certification was timely filed by an authorized person and stated the appropriate statutory factors). Courts have also suggested that it might be appropriate to conduct a closer examination to resolve allegations of bad faith, see, e.g., United States v. C.G., 736 F.2d at 1478, but there are no such allegations in this case. In holding certification subject to judicial scrutiny, the Fourth Circuit first relied on a recent decision of the Supreme Court under the Westfall Act that included the language, “ ‘executive determinations generally are subject to judicial review.’ ” Juvenile Male No. 1, 86 F.3d at 1319 (quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434, 115 S.Ct. 2227, 2236, 132 L.Ed.2d 375 (1995)). Under the Westfall Act, 28 U.S.C. § 2679, the Attorney General defends civil actions brought against employees of the United States and, under appropriate circumstances, certifies “that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose.” 28 U.S.C. § 2679(d)(1). Upon such certification, the United States is substituted for the employee as the defendant in the action and the case proceeds under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. (“FTCA”)-. If the Attorney General refuses to so certify, an employee" }, { "docid": "7021948", "title": "", "text": "interest, but I’m not supposed to check them on that. Tr. at 3-5, reprinted in Appellant’s Br. at 1-2. The district court then dismissed J.A.J.’s motion “with reluctance.” Id. at 5, reprinted in Appellant’s Br. at 2. J.A.J. pled guilty to all charges, and was sentenced to concurrent sentences of two years of probation. J.A.J. now appeals the district court’s ruling that it had jurisdiction. II. The determination of whether an executive decision is subject to judicial re~ view is a question of law, which we review de novo. See United States v. Tucker, 78 F.3d 1313, 1316 (8th Cir.), cert. denied, - U.S. -, 117 S.Ct. 76, 136 L.Ed.2d 35 (1996). This Court has not yet considered whether a court may review a United States Attorney's § 5032 certification that the prosecution of a juvenile represents a \"substantial Federal interest,\" and other circuits have split on the question. Compare United States v. Juvenile No. 1, 118 F.3d 298 (5th Cir.) ( 5032 certification of a substantial federal interest is not reviewable), cert. denied, U.S. 118 S.Ct. 457, - L.Ed.2d (1997), Impounded, 117 F.3d 730 (3d Cir.1997) (same), and United States v. I.D.P., 102 F.3d 507 (11th Cir.1996) (same), cert. denied, - U.S. -, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997), with United States v. Juvenile Male # 1, 86 F.3d 1314 (4th Cir.1996) ( 5032 certification of a substantial federal interest is reviewable). While executive actions are presumptively subject to judicial review, see Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434, 115 S.Ct. 2227, 2236, 132 L.Ed.2d 375 (1995) (noting that “traditional understandings and basic principles [are] that executive determinations generally are subject to judicial review and that mechanical judgments are not the kind federal courts are set up to render”), that presumption can be rebutted. See id. at 424, 115 S.Ct. at 2231 (“[W]e have stated time and again that judicial review of executive action will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.” (quotations omitted) (emphasis added)); see also Wayte v. United States, 470 U.S. 598," }, { "docid": "18947410", "title": "", "text": "denied, — U.S. —, 118 S.Ct. 457, 139 L.Ed.2d 391 (1997); Impounded, 117 F.3d 730 (3d Cir.1997); United States v. I.D.P., 102 F.3d 507 (11th Cir.1996). Only the Fourth Circuit has permitted judicial review of the existence of a substantial federal interest in a § 5032 certification. See United States v. Juvenile Male # 1, 86 F.3d 1314 (4th Cir.1996). We agree with the great majority of circuits that hold that “the United States Attorney’s certification of a substantial federal interest is an unreviewable act of prosecutorial discretion.” Juvenile Male J.A.J., 134 F.3d at 909. As explained more thoroughly by the Eighth Circuit in Juvenile Male J.A.J. and the Third Circuit in Impounded, the statute’s text and structure, as well as separation of powers concerns, support our conclusion that a federal court may not review a United States Attorney’s certification of a substantial federal interest. See Juvenile Male J.A.J., 134 F.3d at 906-09; Impounded, 117 F.3d at 733-37. The text of § 5032 does not specifically provide for judicial review of a certification and fails to articulate any standards for determining the existence of a substantial federal interest. Conversely, § 5032 “expressly provides for judicial review of orders transferring a juvenile for adult prosecution and outlines standards for courts to apply, yet it is silent regarding review of certification.” In re Sealed Case, 131 F.3d at 212. Like the Eighth Circuit, we believe that “Congress’s decision to specifically allow judicial review of transfer, but not of certification of a substantial federal interest, is powerful evidence that judicial review of the latter is barred.” Juvenile Male J.A.J., 134 F.3d at 908; see also Juvenile No. 1, 118 F.3d at 305 (“We find it difficult to conclude that Congress intended to leave the courts to their own devices in determining whether a ‘substantial Federal interest’ exists ‘to warrant the exercise of Federal jurisdiction,’ while specifying with such care the considerations that must inform a court’s evaluation of whether a transfer would be ‘in the interest of justice’ in a particular case.”). In addition, we note that “the exercise of prosecutorial discretion, at" }, { "docid": "22321864", "title": "", "text": "L.Ed.2d 324 (1996); United States v. Cornelius, 968 F.2d 703, 705-06 (8th Cir.1992) (same); United States v. Ponce, 51 F.3d 820, 826 (9th Cir.1995) (same); United States v. Smith, 930 F.2d 1450, 1456 (10th Cir.) (same), cert. denied, 502 U.S. 879, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991); United States v. Stinson, 97 F.3d 466, 469 (11th Cir.1996) ('(Under [a] holistic approach, when a criminal sentence is vacated, it becomes void in its entirety; the sentence—including any enhancements—has been wholly nullified and the slate wiped clean. Consequently, ... the district court is free to reconstruct the sentence utilizing any of die sentence components.” (citations and internal quotation marks omitted)), cert. denied, 519 U.S. 1137, 117 S.Ct. 1007, 136 L.Ed.2d 885 (1997). The D.C., First, Fifth, and Seventh Circuits follow a default rule of limited resentencing. See United States v. Whren, 111 F.3d 956, 960 (D.C.Cir.1997) (\"[U]pon a resentencing occasioned by a remand, unless the court of appeals expressly directs' otherwise, the district court may consider only such new arguments or new facts as are made newly relevant by the court of appeals' decision—whether by the reasoning or by the result.”), cert. denied, 522 U.S. 1119, 118 S.Ct 1059, 140 L.Ed.2d 120 (1998); United States v. Ticchiarelli, 171 F.3d 24, 32 (1st Cir.) (same), cert. denied sub nom. Bowen v. United States, 528 U.S. 850, 120 S.Ct. 129, 145 L.Ed.2d 109 (1999); United States v. Marmolejo, 139 F.3d 528, 530-31 (5th Cir.) (same), cert. denied, 525 U.S. 1056, 119 S.Ct. 622, 142 L.Ed.2d 561 (1998); United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996) (same), cert. denied, 522 U.S. 1119, 118 S.Ct. 1059, 140 L.Ed.2d 120 (1998); United States v. Ticchiarelli, 171 F.3d 24, 32 (1st Cir.) (same), cert. denied sub nom., Bowen v. United States, 528 U.S. 850, 120 S.Ct. 129, 145 L.Ed.2d 109 (1999); United States v. Marmolejo, 139 F.3d 528, 530-31 (5th Cir.) (same), cert. denied, 525 U.S. 1056, 119 S.Ct. 622, 142 L.Ed.2d 561 (1998); United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996) (same). Today we conclude that when a resentenc-ing results from a" }, { "docid": "2585120", "title": "", "text": "98 Stat. 1837. The Senate Report describes § 924(c) violations as “serious and dangerous federal offenses.” S.Rep. No. 98-225, at 20 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3203 (emphasis added). The report concludes that § 924(c) “should be completely revised to ensure that all persons who commit federal crimes of violence ... receive a mandatory sentence, without the possibility of the sentence being made to run concurrently with that for the underlying offense or for any other crime.” Id. at 313, 1984 U.S.C.C.A.N. at 3491. Not content with these rigorous provisions, Congress again amended § 924(c) in 1998 to “throttle [the] criminal use of guns” by increasing the minimum sentence for second or subsequent convictions to at least twenty-five years for each conviction. Pub.L. No. 105-386, 112 Stat. 3469. This legislative history demonstrates the sense of urgency and importance that Congress has placed on attempting to deter the criminal use of firearms on the federal level. Accordingly, we conclude that there exists a substantial federal interest in § 924(c) prosecutions. V. For the foregoing reasons, we hold that the government’s § 5032 certification was proper and sufficient to confer jurisdiction over T.M.’s juvenile proceeding. Therefore, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion. REVERSED AND REMANDED. . The district court caption identifies the defendant as \"A.M.” In its order, the district court correctly noted that the defendant's initials are ''T.M.” Id. at 751 n. 1. . See United States v. Doe, 226 F.3d 672 (6th Cir.2000); United States v. Smith, 178 F.3d 22 (1st Cir.1999); United States v. Jarrett, 133 F.3d 519 (7th Cir.1998); United States v. Juvenile Male, J.A.J., 134 F.3d 905 (8th Cir.1998); In re Sealed Case, 131 F.3d 208 (D.C.Cir.1997); United States v. Juvenile No. 1, 118 F.3d 298 (5th Cir.1997); Impounded (Juvenile R.G.), 117 F.3d 730 (3d Cir.1997); United States v. I.D.P., 102 F.3d 507 (11th Cir.1996). . T.M. complains that the government's representation on April 19, 2004 — that the state \"refuses to assume jurisdiction\" over T.M.— was not technically correct when made because the state" } ]

[ { "docid": "1711277", "title": "", "text": "Warehousemen, and Helpers of America, 780 F.2d 267 (3d Cir.1985). VI. The Government’s motion for the appointment of a receiver pendente lite of Osbro Restaurant, Inc., doing business as Umberto’s Clam House, is granted. The Government is directed to settle an order consistent with this Opinion on seven (7) days’ notice. The order will identify the name and address of the proposed receiver, and state in detail his duties and responsibilities, which are to include regular status reports to the Court. The Government’s order must also include the suggested compensation for the receiver, and provide for reimbursement of his expenses. The order will provide that the receiver’s compensation and expenses will be paid in the first instance by the Government, without prejudice to an application by the Government at the time of final judgment, should the Government prevail, to have such compensation and expenses taxed against one or more of the defendants. Defendants may, in any proposed counter-order, deal with the issues of whether a performance bond or other financial guarantee against loss should be given, 18 U.S.C. § 1964(b); and whether execution of the Court’s injunctive order appointing a receiver should be suspended pending appeal under Rule 62(c), F.R.Civ.P. The foregoing is SO ORDERED. . I consider defendants’ arguments as to Robert Ianniello below. . I express no view, therefore, on the parties’ arguments pertaining to the permissible scope of relief in this case. . Robert Ianniello and the company he heads, Osbro Restaurant, Inc., have made sweeping use of the Fifth Amendment in pre-trial discovery in this case. See this Court’s Opinion on the Government’s motion for an order appointing a receiver pendente lite, filed concurrently herewith. . In a Memorandum Opinion and Order filed concurrently herewith, granting the Government’s motion for appointment of a receiver pendente lite, I have concluded that invocation of the Fifth Amendment may properly form the basis of an adverse inference. . Because I view the possibility of calling Robert to testify and drawing an adverse inference from invocation of the Fifth Amendment privilege sufficient to preclude application of the collateral estoppel doctrine," } ]

[ { "docid": "484261", "title": "", "text": "* *, it is difficult to see how much a plenary trial will add. Defendants make no concrete offers of proof.” Ianniello, 646 F.Supp. at 1300 n. 2. We can readily agree with the general observations offered by defendants that a receivership “is an extraordinary remedy to be employed with the utmost caution”, SEC v. Republic National Life Insurance Co., 378 F.Supp. 430, 438 (S.D.N.Y.1974), and that an evidentiary hearing should normally precede the granting of temporary injunctive relief, at least where there are disputed issues of fact, see Carter-Wallace, Inc. v. Davis-Edwards Pharmacal Corp., 443 F.2d 867, 872 (2d Cir.1971). Here, however, Judge Haight proceeded with an abundance of caution; twice he declined to appoint a receiver and urged development of a fuller factual record. He gave defendants ample opportunity to rebut the government’s case, including deposing the key government expert, Feigenb-aum, presenting their own experts, and arguing extensively the merits of the receivership application. We conclude that it was not an abuse of discretion to refuse to hold a plenary hearing. See Herbert Rosenthal Jewelry Corp. v. Grossbardt, 428 F.2d 551, 554-55 (2d Cir.1970) (“not every application for a preliminary injunction require^] an evidentiary hearing”); Redac Project 6426, Inc. v. Allstate Insurance Co., 402 F.2d 789, 790-91 (2d Cir.1968); cf. SEC v. Frank, 388 F.2d 486, 490 (2d Cir.1968) (“In many instances * * * [t]he taking of evidence would serve little purpose * * *.”). While in Frank the court referred to a lack of “serious dispute about the facts” as obviating the need for a hearing, its rationale is equally valid where, as here, it is unlikely that a hearing will provide the district court with any additional information. Second, the record before the district court was sufficient to justify a receivership. The evidence underlying the convictions of Matthew and Alfred Ianniello, the study and conclusions of government expert Feigenbaum, and the refusal of the defendants to answer any questions—all of which the district court properly considered—collectively provided strong evidence of continued skimming of Umberto’s profits, and it was therefore not an abuse of discretion for" }, { "docid": "8786756", "title": "", "text": "the fund in the hands of the receiver, but that, if the receiver has gained possession of the fund through an unauthorized appointment, he must look for his compensation to the party at whose instance he was appointed. In French v. Gifford, 31, Iowa, 428, the court held that it would be an unjust rule if in all cases the receiver should be entitled to compensation from the fund in his hands without reference to the legality of his appointment. The court there allowed the receiver to be reimbursed for all costs and expenses, rent and taxes, out of the fund, but held that the fund should be charged only with one-third of the compensation allowed to the receiver, the other two-thirds to be taxed to the unsuccessful party in the litigation. In Alderson on Receivers, it is said receiver’s fees are considered as part of the court costs, to be allowed at the final conclusion of the litigation. In Tardy-Smith on Receiverships, vol. 2, p. 753, the author says the receiver’s compensation is part of the costs to be assessed in accordance with the principles of equity. See, also, 34 Cyc. 364. Attorney’s fees are also looked upon by the author as part of the costs of the action. Kilpatrick v. Horton, 15 Wyo. 501, 89 Pac. 1035. The foregoing cases sustain our view that equitable principles should control in the premises, and that, when the District Court shall come to consider the question of what allowances and compensation may be proper in the present case, it is to be presumed the burden will be equitably placed. But we find no error in the ruling that in the first place the receiver’s compensation and the costs necessarily incurred by him in preserving and caring for the property under the orders of the court were properly chargeable against the fund or property in the hands of the receiver. Of course, the court might have made orders with respect to the assessment of the receiver’s compensation and expenses without awaiting final decree; but there was no error in reserving final order" }, { "docid": "3372233", "title": "", "text": "salvaging more from an ongoing business, even though it must function under the constraints of the permanent injunction and the protective order. If it be argued that Comvest seeks also to protect the interests of future investors against the continuation of the business, a cogent answer is that receivership is not the only available remedy and is not shown to be the best available remedy. The CFTC has not argued that the business should be terminated. If that were its position, it could proceed administratively under 7 U.S.C. § 6g, which authorizes revocation or suspension of registration in appropriate circumstances. With respect to protection of customers against inequitable distribution among them of the very limited assets that defendants hold, receivership is not shown to be either essential to protection against that risk or the best means of protection against that risk. It should be noted that the protective order of June 15, 1979, already prohibits defendants from “disposing of in any manner, any assets, causes in action, or other property of the Defendants herein, or any of them,” with exceptions that do not include paying over to one customer-claimant, or to another person for the special protection of one customer-claimant, any part of the defendant’s assets. Thus, such payment would be in violation of the protective order. On the record presented, then, the court cannot find that the appointment of a receiver would add materially to the relief previously granted in the permanent injunction and the protective order prohibiting the dissipation of assets or destruction of records. Moreover, the CFTC has advanced no plan or proposal for compensating the receiver and paying other expenses of receivership and has made no showing that the costs of doing so would not outweigh the benefits reasonably to be expected from receivership. The CFTC, as an agency of government, may assert an immunity from legal responsibility for providing for costs of receivership. See, e. g., Securities and Exchange Commission v. Independence Drilling Corp., 595 F.2d 1006 (5th Cir. 1979). A governmental agency’s immunity from legal responsibility for costs of receivership, however, does not cause" }, { "docid": "484258", "title": "", "text": "ordered discovery designed to unearth relevant facts with an eye toward deciding the government’s motion, and on July 31, 1986, heard argument on the government’s application. At this hearing, defendants requested a plenary, evidentiary hearing, which Judge Haight denied. Approximately two months later, on September 30, 1986, Judge Haight granted the government’s application for a receiver pendente lite. United States v. Ianniello, 646 F.Supp. 1289 (S.D.N.Y.1986). He based his decision on the record underlying the Ianniellos’ criminal convictions, the expert testimony of Feigenbaum, and on the refusal of all defendants to answer any questions concerning the operation of the restaurant. After receiving proposed orders from the parties setting forth the scope of the receivership, Judge Haight entered an order that gave the receiver somewhat less discretion in running Umberto’s than the government had sought, but significantly more authority than defendants proposed. The order gave the receiver, John C. Sabet-ta, “sole and exclusive control over the affairs of [Umberto’s]”, but it limited his power to fire employees, and did not give him title to the restaurant. See United States v. Ianniello, Memorandum Opinion, 86 Civ. 1552 (S.D.N.Y. Nov. 14, 1986) [Available on WESTLAW, DCT database]. Defendants’ motion for a stay pending appeal was denied by a unanimous panel of this court on December 4, 1986. A month later, defendants obtained a stipulation and order permitting them to withdraw their appeal without prejudice to renewal within 60 days. On February 20, 1987, defendants moved by order to show cause in the district court to vacate the receivership. They claimed that the financial affairs of Umberto’s under the receiver had deteriorated to the point that the restaurant was on the verge of insolvency, and that experience under the receiver had demonstrated that the inference of continued skimming of the profits at Umberto’s was unjustified. Shortly after a hearing on the defendants’ motion, which can charitably be said to have gone poorly for them, defendants withdrew the motion and reinstated their appeal from the original order imposing the receivership. DISCUSSION We address first the merits of Judge Haight’s decision to impose the receivership, and" }, { "docid": "484257", "title": "", "text": "4, 1986, for the purpose of projecting Umberto’s gross receipts. Feigenbaum concluded that a “conservative estimate of the yearly gross receipts of Umberto’s Clam House is $1.3 million per year.” Armed with Feigenb-aum’s projections, and with records produced by the defendants that showed that the reported annual gross receipts for Umber-to’s were $850,000 per year, or approximately $500,000 less than projected by the government expert, the government renewed its motion for a receivership on May 22, 1986. During his deposition one day earlier, Robert Ianniello had refused, on fifth amendment grounds, to answer any questions about Umberto’s, even though the government had stipulated that it would consent to an order limiting the use of the deposition to the instant case. Later, Matthew and Alfred Ianniello — and even Osbro Restaurant as a corporate entity — also asserted fifth amendment privileges and refused to respond to any government questions regarding Umberto’s. On June 3, 1986, Judge Haight declined to sign the government’s proposed order to show cause why a receiver should not be appointed. Instead, he ordered discovery designed to unearth relevant facts with an eye toward deciding the government’s motion, and on July 31, 1986, heard argument on the government’s application. At this hearing, defendants requested a plenary, evidentiary hearing, which Judge Haight denied. Approximately two months later, on September 30, 1986, Judge Haight granted the government’s application for a receiver pendente lite. United States v. Ianniello, 646 F.Supp. 1289 (S.D.N.Y.1986). He based his decision on the record underlying the Ianniellos’ criminal convictions, the expert testimony of Feigenbaum, and on the refusal of all defendants to answer any questions concerning the operation of the restaurant. After receiving proposed orders from the parties setting forth the scope of the receivership, Judge Haight entered an order that gave the receiver somewhat less discretion in running Umberto’s than the government had sought, but significantly more authority than defendants proposed. The order gave the receiver, John C. Sabet-ta, “sole and exclusive control over the affairs of [Umberto’s]”, but it limited his power to fire employees, and did not give him title to the restaurant." }, { "docid": "484270", "title": "", "text": "the receivership is thus enjoyed by the public, it seems appropriate at this stage to impose the costs of the receivership on the government, at least pending a resolution of its charges against the defendants. If it is established that Umberto’s as a corporate entity has benefited from the receivership, it might then be appropriate to reimburse the government for some, or perhaps all, of the expenses of the receiver. That is a question, however, whose answer awaits the outcome of the underlying litigation. After oral argument in this case we received a letter from the government, presenting additional argument in an attempt to “clarify” a point made by counsel for defendants during the argument. Such letters are not authorized by the Federal Rules of Appellate Procedure, see Fed.R. App.P. 28(j) (authorizing post-argument letters limited to calling to court’s attention “pertinent and significant authorities [that have] come to the attention of a party * * after oral argument but before a decision” and requiring such letters to be “without argument”). Accordingly, we have given no consideration to the letter. The order appealed from is affirmed." }, { "docid": "484254", "title": "", "text": "GEORGE C. PRATT, Circuit Judge: This appeal raises the narrow issue of whether, pursuant to 18 U.S.C. § 1964, the district court had a sufficient basis to appoint a receiver to manage Umberto’s Clam House. The defendants-appellants, Robert Ianniello and Osbro Restaurant, Inc., do not raise the issue of, and thus we have no occasion to consider, whether a receivership, traditionally used to protect the value of an asset that is the subject of litigation, see Kelleam v. Maryland Casualty Co., 312 U.S. 377, 380-81, 61 S.Ct. 595, 597-98, 85 L.Ed. 899 (1941), may properly be used, as here, to ensure the collection of taxes. Because the parties have done so we, too, assume, but do not decide, that this is a proper case for a receiver. We affirm the district court’s order appointing the receiver as fully justified by the evidence, and further affirm Judge Haight’s imposition of the costs of the receivership on the government pending trial. BACKGROUND The instant litigation followed close on the heels of the criminal convictions of many of the same defendants, convictions that were affirmed by this court in United States v. Ianniello, 808 F.2d 184 (2d Cir.1986). That prosecution centered around charges that defendant Matthew Ianniello had skimmed the receipts of six restaurants, including Umberto's Clam House, all owned and operated by him and his associates. Matthew Ianniello was convicted on all charges against him, and in addition to his prison sentence he was ordered to forfeit to the government $666,666.67. Alfred Ianniello was convicted on charges based on skimming receipts from Umberto’s alone and was not subjected to any forfeiture. The charges and background of the criminal case are set forth in United States v. Ianniello, 621 F.Supp. 1455 (S.D.N.Y.1985). On February 21, 1986, two months after the criminal convictions, the government commenced this civil RICO suit. The complaint seeks injunctive relief against participation by Matthew, Alfred, and Robert Ianniello in the restaurant business, and an order compelling divestiture of their holdings in any bars or restaurants, including Umberto’s. Robert Ianniello has always been listed formally as the owner of Um-berto’s." }, { "docid": "484256", "title": "", "text": "The government moved several times in the district court for certain preliminary injunctive relief, including the appointment of a receiver for Umberto’s. Although several of the defendants had consented to some of the requests for preliminary relief, Judge Haight denied the government’s motion for a receiver on April 16, 1986, without prejudice to renewal if the government could demonstrate “a general inference of continued wrongdoing” at Umberto’s. Judge Haight noted that Robert Ianniello, the nominal owner of Umberto’s, had not been convicted at the criminal trial, and that those who had been convicted had consented to an injunction barring them from involvement in the affairs of Umber-to’s. Thus, he concluded that absent a showing of continued skimming at Umber-to’s, the government had not shown a need for a receiver. In response to Judge Haight’s invitation to generate evidence of continued wrongdoing, the government began an investigation in April 1986, retaining Stewart Feigenb-aum, a recognized expert in the field of restaurant management. He and his staff made numerous visits to Umberto’s between April 30 and May 4, 1986, for the purpose of projecting Umberto’s gross receipts. Feigenbaum concluded that a “conservative estimate of the yearly gross receipts of Umberto’s Clam House is $1.3 million per year.” Armed with Feigenb-aum’s projections, and with records produced by the defendants that showed that the reported annual gross receipts for Umber-to’s were $850,000 per year, or approximately $500,000 less than projected by the government expert, the government renewed its motion for a receivership on May 22, 1986. During his deposition one day earlier, Robert Ianniello had refused, on fifth amendment grounds, to answer any questions about Umberto’s, even though the government had stipulated that it would consent to an order limiting the use of the deposition to the instant case. Later, Matthew and Alfred Ianniello — and even Osbro Restaurant as a corporate entity — also asserted fifth amendment privileges and refused to respond to any government questions regarding Umberto’s. On June 3, 1986, Judge Haight declined to sign the government’s proposed order to show cause why a receiver should not be appointed. Instead, he" }, { "docid": "484266", "title": "", "text": "against them”), and the district court correctly concluded that “the case at bar is civil in nature”. Ianniello, 646 F.Supp. at 1298, citing United States v. E.I. du Pont de Nemours & Co., 366 U.S. 316, 326, 81 S.Ct. 1243, 1250, 6 L.Ed.2d 318 (1961) (fact that divestiture is an ultimate remedy does not render proceeding criminal) and United States v. Cappetto, 502 F.2d 1351, 1357 (7th Cir.1974) (civil proceeding “is not rendered criminal in character by the fact that the acts also are punishable as crimes”). Defendants’ attack on the breadth of the receivership need not detain us long. In 18 U.S.C. § 1964 congress empowered district courts “to prevent * * * violations of section 1962 by issuing appropriate orders, * * * ordering dissolution or reorganization of any enterprise * * * ”, § 1964(a), and “to enter such restraining orders or prohibitions, or take such other actions * * * as it shall deem proper,” § 1964(b). Under these sections, the district court has considerable discretion to frame the scope of a receivership to meet the needs of the case. Cf. View Crest Garden Apartments, Inc. v. United States, 281 F.2d 844, 849 (9th Cir.1960) (“It having been determined that appointment of a receiver * * * is proper, sensible administration may require that the receiver be given the additional power to manage the property * * * ”). The evidence supports the conclusion that a receiver with powers limited to monitoring the affairs of Umberto’s would be ineffective in preventing skimming. The receiver himself stated, in response to Judge Haight’s questioning at the hearing on defendants’ aborted motion to vacate the receivership, that “there is a powerful suggestion in the documents that we have recently analyzed and reported on to the court that some skimming was going on in 1986”, after the district court had ordered monitoring of the financial affairs of Umberto’s. Even without considering the information garnered after the receiver assumed his duties, it is clear that the district court had sufficient reason to believe skimming was continuing at Um-berto’s despite the court-ordered" }, { "docid": "484268", "title": "", "text": "monitoring. For example, the district court had continued an order, entered by Judge Wein-feld in the criminal case, requiring Osbro to “submit * * * on a monthly basis certain financial records relevant to its operations.” 646 F.Supp. at 1293. These records showed that gross receipts at Um-berto’s continued to average less than $75,-000 per month at least through March, 1986, long after Judge Weinfeld had ordered monitoring of Umberto’s affairs. Id. A receiver with broad authority to operate the restaurant was therefore a reasonable means of bringing to an end the skimming at Umberto’s. B. The Costs of the Receivership. On its cross-appeal, the government argues that it should not have been assessed the costs of the receivership “in the first instance * * * without prejudice to an application by the Government at the time of final judgment, should the Government prevail, to have [the costs] taxed against one or more of the defendants.” Ianniello, 646 F.Supp. at 1300. We reject the government’s contention. We note at the outset that we have pendent appellate jurisdiction over what would normally be a nonappealable, interlocutory decision of the district court. See San Filippo v. U.S. Trust Co. of New York, Inc., 737 F.2d 246, 255 (2d Cir.1984) (“once we have taken jurisdiction over one issue in a case, we may, in our discretion, consider otherwise nonappealable issues in the case as well”). Here, the issues of the appointment of a receiver and of where to assess his costs, even though the latter is technically raised on the government's cross-appeal rather than on the defendants’ appeal, are sufficiently intertwined to justify addressing them simultaneously. The purpose of appointing the receiver, as distinguished from that of the underlying litigation, is limited to preventing skimming from Umberto’s profits during the pendency of the litigation. The major point of the skimming, according to the government, was to avoid taxes due on Umberto’s sales and profits. By ensuring that the true receipts are reflected on Um-berto’s books, the receiver will, presumably, cause the taxes paid by the corporate entity to increase. Since the benefit of" }, { "docid": "21745053", "title": "", "text": "not appoint a receiver in such a ease. Cases may arise where the interests of other persons would be so involved as to necessitate the appointment of a receiver in any event; but such a case is not presented here. If this corporation had been let alone, it might (as has been suggested by the district judge) be found necessary at a later date for a receiver to be appointed. But, on the other hand, it might retrieve its fortunes. To deprive the corporation and the trustee of the opportunity to go forward and conserve the assets of the corporation for the benefit of the bondholders in the circumstances as disclosed by this case, would, it seems to us, be inequitable. ' In the brief submitted by defendants, it was argued that this court should direct that the suit should be dismissed at the cost of the plaintiff, and no fees and allowances should be paid out of the trust estates. As there has been no ruling of the district judge in that respect, we do not think that we should at this stage enter such directions. This court has in this opinion held plainly that this receivership ought not to be granted, and we cannot assume that the District Court, with the views of this court before it, will impose any part of the costs and expenses of this receivership and these proceedings upon the property of the corporation or upon the trust estate, at the expense of the innocent bondholders and other creditors. The several decrees of the District Court are therefore reversed, and the ease remanded with directions to vacate the receivership and order the property of the defendants returned to them forthwith and to dismiss the suit. Reversed." }, { "docid": "484262", "title": "", "text": "Rosenthal Jewelry Corp. v. Grossbardt, 428 F.2d 551, 554-55 (2d Cir.1970) (“not every application for a preliminary injunction require^] an evidentiary hearing”); Redac Project 6426, Inc. v. Allstate Insurance Co., 402 F.2d 789, 790-91 (2d Cir.1968); cf. SEC v. Frank, 388 F.2d 486, 490 (2d Cir.1968) (“In many instances * * * [t]he taking of evidence would serve little purpose * * *.”). While in Frank the court referred to a lack of “serious dispute about the facts” as obviating the need for a hearing, its rationale is equally valid where, as here, it is unlikely that a hearing will provide the district court with any additional information. Second, the record before the district court was sufficient to justify a receivership. The evidence underlying the convictions of Matthew and Alfred Ianniello, the study and conclusions of government expert Feigenbaum, and the refusal of the defendants to answer any questions—all of which the district court properly considered—collectively provided strong evidence of continued skimming of Umberto’s profits, and it was therefore not an abuse of discretion for Judge Haight to appoint a receiver. See Doran v. Salem Inn, 422 U.S. 922, 931-32, 95 S.Ct. 2561, 2567-68, 45 L.Ed.2d 648 (1975) (imposition of temporary injunctive-type relief subject to abuse of discretion review); Meineke Discount Muffler Shops, Inc. v. Noto, 603 F.Supp. 443, 444 (E.D.N.Y.1985) (“ 'The appointment of a receiver pendent lite lies in the discretion of the Court * * *.’” (quoting Republic National Life Co., 378 F.Supp. at 438)); Guy v. Citizens Fidelity Bank and Trust Co., 429 F.2d 828, 833-34 (6th Cir.1970) (“[Appointment of receivers in order to protect property * * * is within the sound discretion of the District Judge.”); 7 Moore, Federal Practice ¶ 66.05[1] at 1920.-1-20.2 & n. 2a (2d ed. 1986). The defendants argue that it was improper for the district court to give “preclusive effect” to the criminal convictions of Matthew and Alfred Ianniello, since Robert Ianniello, the sole record owner of Umber-to’s, was acquitted in the criminal prosecution. It is clear that Judge Haight did not do so. Rather, he treated the criminal" }, { "docid": "484267", "title": "", "text": "a receivership to meet the needs of the case. Cf. View Crest Garden Apartments, Inc. v. United States, 281 F.2d 844, 849 (9th Cir.1960) (“It having been determined that appointment of a receiver * * * is proper, sensible administration may require that the receiver be given the additional power to manage the property * * * ”). The evidence supports the conclusion that a receiver with powers limited to monitoring the affairs of Umberto’s would be ineffective in preventing skimming. The receiver himself stated, in response to Judge Haight’s questioning at the hearing on defendants’ aborted motion to vacate the receivership, that “there is a powerful suggestion in the documents that we have recently analyzed and reported on to the court that some skimming was going on in 1986”, after the district court had ordered monitoring of the financial affairs of Umberto’s. Even without considering the information garnered after the receiver assumed his duties, it is clear that the district court had sufficient reason to believe skimming was continuing at Um-berto’s despite the court-ordered monitoring. For example, the district court had continued an order, entered by Judge Wein-feld in the criminal case, requiring Osbro to “submit * * * on a monthly basis certain financial records relevant to its operations.” 646 F.Supp. at 1293. These records showed that gross receipts at Um-berto’s continued to average less than $75,-000 per month at least through March, 1986, long after Judge Weinfeld had ordered monitoring of Umberto’s affairs. Id. A receiver with broad authority to operate the restaurant was therefore a reasonable means of bringing to an end the skimming at Umberto’s. B. The Costs of the Receivership. On its cross-appeal, the government argues that it should not have been assessed the costs of the receivership “in the first instance * * * without prejudice to an application by the Government at the time of final judgment, should the Government prevail, to have [the costs] taxed against one or more of the defendants.” Ianniello, 646 F.Supp. at 1300. We reject the government’s contention. We note at the outset that we have pendent" }, { "docid": "484255", "title": "", "text": "the same defendants, convictions that were affirmed by this court in United States v. Ianniello, 808 F.2d 184 (2d Cir.1986). That prosecution centered around charges that defendant Matthew Ianniello had skimmed the receipts of six restaurants, including Umberto's Clam House, all owned and operated by him and his associates. Matthew Ianniello was convicted on all charges against him, and in addition to his prison sentence he was ordered to forfeit to the government $666,666.67. Alfred Ianniello was convicted on charges based on skimming receipts from Umberto’s alone and was not subjected to any forfeiture. The charges and background of the criminal case are set forth in United States v. Ianniello, 621 F.Supp. 1455 (S.D.N.Y.1985). On February 21, 1986, two months after the criminal convictions, the government commenced this civil RICO suit. The complaint seeks injunctive relief against participation by Matthew, Alfred, and Robert Ianniello in the restaurant business, and an order compelling divestiture of their holdings in any bars or restaurants, including Umberto’s. Robert Ianniello has always been listed formally as the owner of Um-berto’s. The government moved several times in the district court for certain preliminary injunctive relief, including the appointment of a receiver for Umberto’s. Although several of the defendants had consented to some of the requests for preliminary relief, Judge Haight denied the government’s motion for a receiver on April 16, 1986, without prejudice to renewal if the government could demonstrate “a general inference of continued wrongdoing” at Umberto’s. Judge Haight noted that Robert Ianniello, the nominal owner of Umberto’s, had not been convicted at the criminal trial, and that those who had been convicted had consented to an injunction barring them from involvement in the affairs of Umber-to’s. Thus, he concluded that absent a showing of continued skimming at Umber-to’s, the government had not shown a need for a receiver. In response to Judge Haight’s invitation to generate evidence of continued wrongdoing, the government began an investigation in April 1986, retaining Stewart Feigenb-aum, a recognized expert in the field of restaurant management. He and his staff made numerous visits to Umberto’s between April 30 and May" }, { "docid": "12296693", "title": "", "text": "Monitor shall be adopted as the findings of fact and conclusions of law of the Court unless, within ten days after being served with notice of the filing of the report, either side moves to reject or modify the report. The Court will entertain no objection to any report unless it is shown as a preliminary matter that an identical objection was submitted to the Monitor in the form of a specific written objection in accordance with the preceding paragraph of this Order. In accordance with Federal Rule of Civil Procedure 53(e)(2), the Court shall accept the Monitor’s findings of fact unless clearly erroneous. IT IS FURTHER HEREBY ORDERED that the Monitor shall be compensated at the rate of Seventy-Five Dollars ($75.00) per hour for services performed in accordance with this Order. This rate has been determined by the Court by reference to the rate the Monitor named herein would reasonably charge for comparable services performed for private clients, and is subject to change by further order of the Court. All reasonable expenses incurred by the Monitor in carrying out his duties under this Order shall be reimbursed as costs of the mastership. IT IS FURTHER HEREBY ORDERED that costs of the mastership, including the Monitor’s fees and expenses, shall be borne by defendants as part of the costs of this action. The Monitor shall submit to defendants or their designated representative periodic itemized statements of fees and expenses. All fees and expenses to requested shall be paid by defendants within fourteen (14) days of the receipt of each statement. IT IS FURTHER HEREBY ORDERED that unless inconsistent with the express provisions of this Order of Reference, Federal Rule of Civil Procedure 53 shall govern all questions relating to the scope of this reference and the Monitor’s duties and powers hereunder. IT IS FURTHER HEREBY ORDERED that Robert R- Riggs, is appointed to serve as Monitor for the Court in this action. Mr. Riggs is a member of the State Bar of California and the bar of this Court. He received the degree of Juris Doctor from Stanford Law School" }, { "docid": "8786755", "title": "", "text": "Supreme Court of Alabama held that the compensation or fees of a receiver are regarded as part of the costs, to be determined within the sound discretion of the court, and cited Stuart v. Boulware, 133 U. S. 78, 10 Sup. Ct. 242, 33 L. Ed. 568, in support of that view. The reasoning of the decision is that a receiver represents the court which appoints him, and that, while cases may arise where the appointment of a receiver has been wholly unauthorized and unwarranted, compensation should be denied him, yet as a rule compensation of the receiver, and fees paid by him to an attorney for professional services, and other legitimate expenses, are part of the costs, and subject to the usual rules of taxing costs to the losing party. The court was of the opinion that compensation should not be denied a receiver because there was error in appointing him. In Ephraim v. Pacific Bank, 129 Cal. 589, 62 Pac. 177, the costs of a receivership were regarded as primarily a charge upon the fund in the hands of the receiver, but that, if the receiver has gained possession of the fund through an unauthorized appointment, he must look for his compensation to the party at whose instance he was appointed. In French v. Gifford, 31, Iowa, 428, the court held that it would be an unjust rule if in all cases the receiver should be entitled to compensation from the fund in his hands without reference to the legality of his appointment. The court there allowed the receiver to be reimbursed for all costs and expenses, rent and taxes, out of the fund, but held that the fund should be charged only with one-third of the compensation allowed to the receiver, the other two-thirds to be taxed to the unsuccessful party in the litigation. In Alderson on Receivers, it is said receiver’s fees are considered as part of the court costs, to be allowed at the final conclusion of the litigation. In Tardy-Smith on Receiverships, vol. 2, p. 753, the author says the receiver’s compensation is part" }, { "docid": "12296694", "title": "", "text": "the Monitor in carrying out his duties under this Order shall be reimbursed as costs of the mastership. IT IS FURTHER HEREBY ORDERED that costs of the mastership, including the Monitor’s fees and expenses, shall be borne by defendants as part of the costs of this action. The Monitor shall submit to defendants or their designated representative periodic itemized statements of fees and expenses. All fees and expenses to requested shall be paid by defendants within fourteen (14) days of the receipt of each statement. IT IS FURTHER HEREBY ORDERED that unless inconsistent with the express provisions of this Order of Reference, Federal Rule of Civil Procedure 53 shall govern all questions relating to the scope of this reference and the Monitor’s duties and powers hereunder. IT IS FURTHER HEREBY ORDERED that Robert R- Riggs, is appointed to serve as Monitor for the Court in this action. Mr. Riggs is a member of the State Bar of California and the bar of this Court. He received the degree of Juris Doctor from Stanford Law School in 1982, where he graduated with an outstanding record. He has since served as a law clerk for a judge of the United States Court of Appeals for the Ninth Circuit. He has also served for more than a year as a law clerk for the judge presiding in this action. In that capacity, he has ably assisted the Court in connection with all aspects of the case. Acting as law clerk-crier, Mr. Riggs was present in the courtroom nearly every day of trial. He is thoroughly familiar with the entire record in this action and with the law applicable to the issues presented. He is also thoroughly familiar with the Findings of Fact, Conclusions of Law, and Permanent Injunction entered by the Court herein. The Court reposes special confidence in him and his capacity to serve reliably and effectively as Monitor. JUDGMENT OF PERMANENT INJUNCTION Based upon the Findings of Fact and Conclusions of Law this day filed: IT IS HEREBY ORDERED, ADJUDGED, and DECREED as follows: Defendants, the Director of the California Department" }, { "docid": "484259", "title": "", "text": "See United States v. Ianniello, Memorandum Opinion, 86 Civ. 1552 (S.D.N.Y. Nov. 14, 1986) [Available on WESTLAW, DCT database]. Defendants’ motion for a stay pending appeal was denied by a unanimous panel of this court on December 4, 1986. A month later, defendants obtained a stipulation and order permitting them to withdraw their appeal without prejudice to renewal within 60 days. On February 20, 1987, defendants moved by order to show cause in the district court to vacate the receivership. They claimed that the financial affairs of Umberto’s under the receiver had deteriorated to the point that the restaurant was on the verge of insolvency, and that experience under the receiver had demonstrated that the inference of continued skimming of the profits at Umberto’s was unjustified. Shortly after a hearing on the defendants’ motion, which can charitably be said to have gone poorly for them, defendants withdrew the motion and reinstated their appeal from the original order imposing the receivership. DISCUSSION We address first the merits of Judge Haight’s decision to impose the receivership, and then turn to his simultaneous decision to impose the costs of the receivership on the government pending trial. A. The Appointment of a Receiver. The defendants challenge both the appointment of the receiver and the breadth of his powers. They claim first that the district court erred in failing to hold an evidentiary hearing before appointing the receiver, and second that the evidence was inadequate to justify the extraordinary step of appointing a receiver. We reject each of these challenges. First, we see no reason why the district court needed to hold a plenary hearing on the government’s application. All defendants—including the corporate defendant Osbro Restaurant, Inc.—had made clear that they would refuse to answer any questions regarding the operation of Um-berto’s. When asked by the district court what evidence he would introduce at a hearing, defense counsel gave no satisfactory response, arguing only that the defendants’ refusal to answer questions did not justify a negative inference. As Judge Haight said, “[I]f defendants are justified in their refusal to testify or produce additional information *" }, { "docid": "484260", "title": "", "text": "then turn to his simultaneous decision to impose the costs of the receivership on the government pending trial. A. The Appointment of a Receiver. The defendants challenge both the appointment of the receiver and the breadth of his powers. They claim first that the district court erred in failing to hold an evidentiary hearing before appointing the receiver, and second that the evidence was inadequate to justify the extraordinary step of appointing a receiver. We reject each of these challenges. First, we see no reason why the district court needed to hold a plenary hearing on the government’s application. All defendants—including the corporate defendant Osbro Restaurant, Inc.—had made clear that they would refuse to answer any questions regarding the operation of Um-berto’s. When asked by the district court what evidence he would introduce at a hearing, defense counsel gave no satisfactory response, arguing only that the defendants’ refusal to answer questions did not justify a negative inference. As Judge Haight said, “[I]f defendants are justified in their refusal to testify or produce additional information * * *, it is difficult to see how much a plenary trial will add. Defendants make no concrete offers of proof.” Ianniello, 646 F.Supp. at 1300 n. 2. We can readily agree with the general observations offered by defendants that a receivership “is an extraordinary remedy to be employed with the utmost caution”, SEC v. Republic National Life Insurance Co., 378 F.Supp. 430, 438 (S.D.N.Y.1974), and that an evidentiary hearing should normally precede the granting of temporary injunctive relief, at least where there are disputed issues of fact, see Carter-Wallace, Inc. v. Davis-Edwards Pharmacal Corp., 443 F.2d 867, 872 (2d Cir.1971). Here, however, Judge Haight proceeded with an abundance of caution; twice he declined to appoint a receiver and urged development of a fuller factual record. He gave defendants ample opportunity to rebut the government’s case, including deposing the key government expert, Feigenb-aum, presenting their own experts, and arguing extensively the merits of the receivership application. We conclude that it was not an abuse of discretion to refuse to hold a plenary hearing. See Herbert" }, { "docid": "484269", "title": "", "text": "appellate jurisdiction over what would normally be a nonappealable, interlocutory decision of the district court. See San Filippo v. U.S. Trust Co. of New York, Inc., 737 F.2d 246, 255 (2d Cir.1984) (“once we have taken jurisdiction over one issue in a case, we may, in our discretion, consider otherwise nonappealable issues in the case as well”). Here, the issues of the appointment of a receiver and of where to assess his costs, even though the latter is technically raised on the government's cross-appeal rather than on the defendants’ appeal, are sufficiently intertwined to justify addressing them simultaneously. The purpose of appointing the receiver, as distinguished from that of the underlying litigation, is limited to preventing skimming from Umberto’s profits during the pendency of the litigation. The major point of the skimming, according to the government, was to avoid taxes due on Umberto’s sales and profits. By ensuring that the true receipts are reflected on Um-berto’s books, the receiver will, presumably, cause the taxes paid by the corporate entity to increase. Since the benefit of the receivership is thus enjoyed by the public, it seems appropriate at this stage to impose the costs of the receivership on the government, at least pending a resolution of its charges against the defendants. If it is established that Umberto’s as a corporate entity has benefited from the receivership, it might then be appropriate to reimburse the government for some, or perhaps all, of the expenses of the receiver. That is a question, however, whose answer awaits the outcome of the underlying litigation. After oral argument in this case we received a letter from the government, presenting additional argument in an attempt to “clarify” a point made by counsel for defendants during the argument. Such letters are not authorized by the Federal Rules of Appellate Procedure, see Fed.R. App.P. 28(j) (authorizing post-argument letters limited to calling to court’s attention “pertinent and significant authorities [that have] come to the attention of a party * * after oral argument but before a decision” and requiring such letters to be “without argument”). Accordingly, we have given no" } ]

[ { "docid": "17647786", "title": "", "text": "PER CURIAM: I A confidential informant told federal law enforcement officials that Claimant-Appellant Ernie Sanders was a large-scale marijuana trafficker who had a Mexican source in Phoenix, Arizona. The informant stated that he and several others had assisted Sanders in distributing two 1000-pound loads of marijuana in New York and New Jersey. The informant also stated that he met with Sand ers a few weeks later in Vista, California, and delivered $30,000 to Sanders, which represented profits from the marijuana distribution on the East Coast. The informant reported Sanders drove to and from the Vista meeting in a 1986 blue two-tone Ford pickup. The government seized the truck and filed a forfeiture complaint. Sanders moved to dismiss the complaint and require return of his truck. The government acquiesced in the dismissal, but asked the district court to certify “that there was reasonable cause for the seizure.” 28 U.S.C. § 2465. The court dismissed the complaint, ordered the pickup returned to Sanders, and issued a certificate of reasonable cause. The court also ordered Sanders to pay the costs incurred by the government in seizing and storing the truck. Sanders appeals. II Sanders contends the court erred in taxing costs against him, because he was the prevailing party. The government agrees, and so do we. By the terms of section 2465, each party must bear its own costs, but the statute does not authorize taxing a prevailing claimant with the cost of seizure and storage. Accordingly, we reverse that portion of the district court’s order taxing costs against Sanders. III A. Sanders challenges the order issuing a certificate of reasonable cause. The government contends we lack appellate jurisdiction because such an order is not a “final decision” within the meaning of 28 U.S.C. § 1291. The government relies on United States v. Abatoir Place, 106 U.S. 160, 1 S.Ct. 169, 27 L.Ed. 128 (1882), which held that an order denying a certificate of reasonable cause was not appealable. When Abatoir Place was decided, the federal courts had long held that many post-judgment orders were not appealable, often on the formalistic ground cited" } ]

[ { "docid": "22993792", "title": "", "text": "of the administrative forfeiture. Floyd,, 677 F.Supp. at 1087. Both approaches sanction a pure race to file or publish notice; a race we have disapproved. While we modify the trial court’s analysis, that court did not abuse its discretion by retaining jurisdiction in this case. The government cites In re Harper, 835 F.2d 1273 (8th Cir.1988), where the government commenced an administrative forfeiture after the claimant had filed a Rule 41(e) motion. The claimant in Harper failed to respond to the published notice of the administrative forfeiture within the time required by statute, and the forfeiture was completed. The trial court subsequently dismissed the Rule 41(e) motion and was affirmed on appeal. Id. at 1274. The government argues that this case controls our ruling. We disagree. In Harper, the administrative forfeiture was apparently complete before any actual proceedings had begun on the Rule 41(e) motion. After noting the equitable nature of Rule 41(e) jurisdiction, the court said: Although Harper had knowledge of the pending forfeiture proceeding, he allowed the matter to finalize without challenging the forfeiture or seeking a stay of the proceedings.... Harper cannot pursue an equitable remedy in the district court when he did not challenge in any way the very proceeding that forfeited his property in the first place. Id. In the instant case, Floyd filed his Rule 41(e) motion on September 18, 1987. The government claims that it instituted an administrative forfeiture on September 21, 1987, which corresponds to the day DEA agent Ann Canty forwarded paperwork to the Washington, D.C., DEA office regarding the seizure. To apply Harper, we must determine when the administrative forfeiture was in fact instituted. The statute and regulations governing 21 U.S.C. § 881 forfeitures provide for notice to interested parties of the government’s intent to seek forfeiture of the property. See 19 U.S.C. § 1607; 19 C.F.R. § 162.45(b)(1). A claimant has twenty days from the date of first publication of notice to file a claim and cost bond. 19 U.S.C. § 1608. If the claimant so responds, the matter is referred to a United States attorney for institution of" }, { "docid": "15806613", "title": "", "text": "passport, a fact which the Government totally disregarded, there was no basis in law or in fact to prosecute the forfeiture under § 1324(a)(l)(A)(iv) either. Accordingly, we find that the Government failed to establish that its position in support of a forfeiture under either subsection (i) or (iv) of the statute was justified in law or in fact and claimant’s request under EAJA is GRANTED Based on the foregoing, ELLEN HEF-FRON, as a prevailing claimant, is entitled to $24,824.00 corresponding to the fees and expenses incurred by counsel in prosecuting her claim in this litigation. Return of Cost Bond Claimant having prevailed in this action and absent any argument justifying otherwise by the Government, the $5,000.00 cost bond given as surety to INS must be returned. See United States v. Real Property and Residence Located at Route 1, 920 F.2d 788 (11th Cir.1991). U.S.M.S. Storage and Maintenance According to claimant, in order to obtain the release of the LIBERTINE she was forced to pay storage and maintenance fees in the amount of $10,877.18 to the U.S. Marshal Service which she did under protest. These expenditures constitute taxable costs pursuant to 28 U.S.C. § 1921(a)(1)(E). The court having issued a certificate of probable cause under 28 U.S.C. § 2465, each party is responsible for its own costs. Inasmuch as the aforementioned expenses were incurred while the property was in custody of the United States and counsel for the Government having failed to justify why these should be borne by the owner, claimant’s request for reimbursement of this amount is GRANTED. Claimant’s Own Expenses Claimant has also requested payment of $2,812.08 incurred by her in storing, fitting and conditioning the vessel after its release pursuant to 28 U.S.C. § 2465. Assuming that these expenditures constitute reimbursable costs under the aforementioned provision, see United States v. $277,000 U.S. Currency, 69 F.3d 1491 (9th Cir.1995) (successful claimant precluded from seeking damages upon return of property based on Government’s immunity); United States v. Silvers, 932 F.Supp. 702 (D.Md.1996) aff'd, 106 F.3d 394 (4th Cir.1997) (unpublished table decision) (claimant not entitled to depreciation of property while" }, { "docid": "23032709", "title": "", "text": "vehicles have already been seized and are in the hands of the police. Just as with real property seized by the government in forfeiture proceedings, there is no danger that these vehicles will abscond. See James Daniel Good Real Prop., 510 U.S. at 56-57, 114 S.Ct. 492 (discussing the need for seizure of movable property). Plaintiffs seek a determination only of whether continued retention of their vehicles by the City is valid and justified. Continued retention may be unjustified when other means of restraint would accomplish the City’s goals. See id. at 59, 114 S.Ct. 492 (“In the usual case, the Government ... has various means, short of seizure, to protect its legitimate interests” in forfeitable property). To ensure that the City’s interest in forfeitable vehicles is protected, claimants could post bonds, or a court could issue a restraining order to prohibit the sale or destruction of the vehicle. See id. at 58-59, 114 S.Ct. 492 (suggesting judicial means to ensure that real property is not sold or destroyed pendente lite ). The need to prevent for-feitable property from being sold or destroyed during the pendency of proceedings does not necessarily justify continued retention of all vehicles when other means of accomplishing those goals are available. A bond is in some respects a superior form of security because it entails no storage costs or costs of sale. A' second reason offered by the City for maintaining custody of vehicles prior to judgment in forfeiture proceedings is that the City’s in rem jurisdiction over the vehicles depends upon its unbroken possession from seizure to judgment. The Supreme Court has held, however, that possession of a res during the entire course of the proceedings is unnecessary to preserve jurisdiction. See Republic Nat’l Bank of Miami v. United States, 506 U.S. 80, 88-89, 113 S.Ct. 554, 121 L.Ed.2d 474 (1992) (“We hold that, in an in rem forfeiture action, the Court of Appeals is not divested of jurisdiction by the prevailing party’s transfer of the res from the district.”). Noting that the in rem rules had their origin in admiralty law, where a" }, { "docid": "8422170", "title": "", "text": "1995 — approximately 20 months prior to the filing of this action. However, the Polanco court also stated that the cause of action would not accrue until Polanco “discovered or had reason to discover that his property had been forfeited without sufficient notice.” Id. (citing Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993)). The Folanco opinion does not explain how the panel might have reconciled this statement with the first \"bullet point\" quoted above. It is conceivable that the Polanco court meant that the conclusion of forfeiture proceedings could, by itself, charge the claimant with the knowledge ordinarily necessary to effectuate accrual. Alternatively, it is conceivable that the Polanco court believed that the initial seizure would put some or all claimants on inquiry notiáe of the ultimate disposition of their property-including forfeiture. However, the court did not articulate or justify either of these propositions, and they are not immediately obvious. While we may be presented in the future with a more suitable opportunity to consider further the accrual principles sketched out in Polanco, our disposition of the merits of the instant case allows us to preter-mit the question. Even if we assume, arguendo, that Adames's action was timely filed, we affirm, for the reasons stated infra, the district court's judgment dismissing Adames's complaint. III. We turn now to the merits of Adames's claim that he has a right to the return of the property in question, because it was forfeited without sufficient notice and, therefore, in violation of due process. The government concedes on this appeal that Adames did not receive legally adequate notice of the relevant forfeiture proceedings. The government therefore concedes that, apart from the statute of limitations defense, Adames has a right to, in effect, re-open the 1989 decree of forfeiture and seek a fresh determination of his claim to the property in question. See Boero, 111 F.3d at 307; United States v. Giovanelli, 998 F.2d 116, 119 (2d Cir.1993). Nevertheless, the government argues that the district court properly held that Adames's own statements at his plea allocution, quoted above, conclusively demonstrate that he had forfeited" }, { "docid": "10775734", "title": "", "text": "not a wasting asset; any value lost by its retention could have been restored by the addition of interest had Ivers prevailed in the forfeiture action. Secondly, Ivers was not barred from initiating judicial action himself, if he so chose. While the duty to institute forfeiture proceedings rests with the Government and may not be shifted to the claimant, his choice not to commence proceedings for restitution of his property provides a further indici-um of his “wait-and-see” attitude. Lastly, this court is reluctant to impose a strict obligation on the Government to seek judicial relief immediately, with the increase of litigation and burdens on litigants that would entail, where, as here, the circumstances are equivocal. A more compelling case of prejudicial delay than what has been shown here would have to be demonstrated before we would be willing to deprive the Government of a forfeiture to which it otherwise has a legitimate entitlement. Id. at 1373 (emphasis added). Three years ago, this court at least implicitly recognized that a showing of prejudice is essential to a claim of violation of procedural due process in the following comment: “Because of the fast depreciating nature of an automobile, the Government’s claim that no prejudice to the claimant resulted from the untimeliness of the Government’s action is clearly without merit.” United States v. One 1970 Ford Pickup Serial No. F10YRG53615, 564 F.2d 864, 866 (9th Cir. 1977). Appellant presented no evidence that the delay bringing the forfeiture proceedings to trial in any way interfered with the presentation of her defense in the forfeiture proceedings. Instead we are told in her brief that, “[fjinally, there can be no question that appellant was prejudiced by the government’s delay.” Appellant proceeds forthrightly to ask that we disapprove of that portion of Ivers which holds that currency is not a wasting asset. 581 F.2d at 1373. The majority states, without citation to any authority, “[bjefore prejudice to the claimant becomes relevant, the government must first show legitimate entitlement and the absence of unreasonable delay.” The majority does not explain further its use of the term “legitimate entitlement.”" }, { "docid": "3422097", "title": "", "text": "the conclusion of the forfeiture proceedings could, by itself, charge the claimant with the knowledge ordinarily necessary to effectuate accrual.” Id. at 732. Yet, it also recognized the possibility that the panel “believed that the initial seizure would put some or all claimants on inquiry notice of the ultimate disposition of heir property — including forfeiture.\" Id. This ambiguity is irrelevant to the instant action, however, since, unlike the situation in Adames, there is no question that plaintiff was aware that his property had been seized. See Pimentel Dep. at 28-30; PI. Traverse at 4. In fact, plaintiff admits that he witnessed the DEA agents driving the cars away from his home on January 19, 1990. See Pimentel Dep. at 29-30. Although his claim did not accrue until the date the property was administratively forfeited, plaintiff's knowledge of the initial seizure gave him reason to know that forfeiture proceedings were imminent. Thus, he clearly would have had \"reason to discover that his property had been forfeited without notice” upon termination of the forfeiture proceedings. . Plaintiffs efforts to retrieve his property are also distinguishable from the dilgence displayed by the claimant in Ramirez v. United States, 767 F.Supp. 1563, 1570 (M.D.Fla. 1991), which plaintiff also cited, see PI. Traverse at 23. In that case, the Customs Service declared plaintiff's boat forfeited and sold the vessel, despite having received plaintiffs properly-filed claim. See Ramirez, 767 F.Supp. at 1570. Obviously, there is a tremendous difference between a letter claiming an interest in the property and requesting a waiver of the bond requirement, see id. at 1567, and a brief conversation between an attorney and a DEA agent inquiring about the status of seized property, see supra at 422-23. Moreover, plaintiff has failed to submit any affirmative evidence that such a conversation ever actually occurred, let alone any detail as to what was said. For these reasons, there is no reason to charge the DEA with actual notice that plaintiff was formally contesting the seizure. . A close inspection of the documents reveals that such efforts actually commenced on June 21, 1995. See" }, { "docid": "23032730", "title": "", "text": "in McClendon v. Rosetti, 369 F.Supp. 1391, 1394 (S.D.N.Y.1974), which required the Property Clerk to initiate a forfeiture proceeding within 10 days after a claimant's timely demand. . In contrast, while the statute here requires only that a forfeiture proceeding be initiated within 25 days after a claim is made, the California controlled substances act requires that, once a person claiming an interest in seized property files a verified claim, \"the [civil] forfeiture proceeding shall be set for hearing on a day not less than 30 days therefrom, and the proceeding shall have priority over other civil cases.\" Cal. Health & Safety Code § 11488.5(c)(1) (emphasis added). Similarly, the civil forfeiture provision of the Wisconsin controlled substances act states that \"the action shall be set for hearing within 60 days of the service of the answer but may be continued for cause or upon stipulation of the parties.” Wis. Stat. § 961.555(2)(b); see also State v. Rosen, 72 Wis.2d 200, 240 N.W.2d 168, 171-72 (1976) (holding that the 60-day rule under the Wisconsin controlled substances act is mandatory and that failure to set the hearing within that period deprived the trial court of jurisdiction). In South Carolina, when a motorist is convicted of a third or subsequent DUI violation within 10 years, the vehicle may be seized and forfeited, but the vehicle’s registered owner, who must be given notice within 72 hours of the confiscation, has 10 days to request a judicial hearing to determine issues concerning the owner's knowledge and authorization. \"The hearing must be held within ten days from the date of receipt of the request.” S.C.Code Ann. § 56-5-6240(A). Some legislatures have sought to mitigate the depreciation of property values and other costs incurred through delays of civil forfeiture proceedings. See, e.g., Ariz.Rev.Stat. § 13-4310(1) (\"Before staying civil discovery [in a forfeiture proceeding until a related criminal trial is concluded], the court shall make adequate provision to prevent any loss or expense to any victim or party resulting from the delay, including loss or expense due to maintenance, management, insurance, storage or preservation of the availability of" }, { "docid": "2765963", "title": "", "text": "Floyd court noted that a district court would have discretion to dismiss a Rule 41(e) motion where an administrative forfeiture is promptly commenced as in In re Harper, 835 F.2d 1273 (8th Cir.1988). Id. at 1008. In Harper, the government commenced an administrative forfeiture after the claimant had filed a Rule 41(e) motion. The claimant failed to file a claim and cost bond within twenty days of publication of the first notice, and the forfeiture was completed before the Rule 41(e) hearing. The Harper court concluded that the claimant should not be permitted to pursue an equitable remedy after he failed to challenge the forfeiture. Id. at 1274. Unlike the claimant in Floyd, but like the claimant in Harper, the Frazees had a remedy available to challenge the seizure at the time of the Rule 41(e) hearing. That remedy is adequate because the legality of a seizure may be tested in a judicial forfeiture. Floyd, 860 F.2d at 1004. We do not find persuasive the Frazees’ contention that the judicial forfeiture proceeding is an inadequate remedy because the court extended the deadlines in that proceeding. We conclude that the district court acted within its discretion in dismissing the Fra-zees’ Rule 41(e) motion. The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED. . Lisa and Louis Novotny each claim a property interest in a seized vehicle. Appellant’s App. at 6. . Two other remedies were addressed but are not relevant to this appeal. . Wiren v. Eide, 542 F.2d 757, 761 (9th Cir. 1976). . The relevant statutes provide that an administrative forfeiture is commenced by publication of a notice of seizure and intent to forfeit property. 19 U.S.C. § 1607. A claimant has twenty days after the first publication of notice to file a claim and cost bond. 19 U.S.C. § 1608. If no such filing occurs, the property is administratively forfeited at the end of twenty days. 19 U.S.C. § 1609. A timely filing of a claim and cost bond stops the administrative forfeiture, 21 C.F.R. § 1316.76(b), and the matter is" }, { "docid": "22732779", "title": "", "text": "the district court that administrative forfeiture proceedings had been initiated in April by the government’s service of notice of its intent to forfeit the seized property and publication of the notice for three consecutive weeks in May and July of 1989. The opposition also stated that “[a]s Elias was informed by the notice that was served upon him, he could have caused the judicial determination of the forfeiture by filing a claim and cost bond with DEA. This he failed to do.” The opposition concluded with the request that the court “deny the Motion for Return of Property, leaving the disposition of the seized property to be resolved in the context of the civil forfeiture.” On October 4, 1989, Elias filed a pleading styled as a “Supplement to Motion for Return of Seized Property.” The motion stated “[n]o forfeiture proceedings have been initiated herein. The Petition for Remission and Mitigation was filed timely in both the seizure cases herein and have [sic] not been ruled upon to this date.” A hearing was conducted on October 5, 1989, on Elias’ motion for return of his property. Elias’ counsel informed the court that “there was a forfeiture action and a notice of seizure, and there is no forfeiture action pending now, not any judicial forfeiture. In fact, the notice of seizure as to the $14,830 was filed and noticed August 31, 1989.” In response, the government informed the court that Elias’ counsel had been given notice of “the deadlines and the procedures that had to be followed in order to cause that administrative forfeiture to become judicial, in which case he could have concentrated on the forfeiting problems, but he failed to do that.” Elias’ counsel replied that “the bond, the claims, the petition, they were all filed.” Evidence supporting this statement was not presented to the district court. The court took the issues raised by the motion and the opposition under submission. On November 21, 1989, the court entered the following order: “IT IS ORDERED that the Motion is DENIED; defendant can litigate the issue in the civil forfeiture proceeding.” II." }, { "docid": "11310551", "title": "", "text": "attach, when the prior civil administrative forfeiture proceeding involved unclaimed property, i.e., the defendant in the subsequent criminal prosecution failed to mount an administrative challenge to the civil forfeiture. Id. at 310. When a claimant does administratively challenge a civil forfeiture proceeding, however, there must be a degree of finality to the prior proceeding before double jeopardy may be deemed to attach. Cf. United States v. Chick, 61 F.3d at 686. Although not central to our holding in Chick, we noted in that ease that, “[W]here a claimant/defendant has been subjected to a civil forfeiture that amounts to punishment and judgment has already been entered, the Fifth Amendment’s Double Jeopardy Clause precludes the Government from bringing a separate criminal action for the same offense which the civil forfeiture was based upon.” Id. (emphasis added). Generally speaking, a claimant to seized property can halt any civil administrative forfeiture proceeding, and force the government to go to federal district court, by filing a notice of claim, posting a bond in the amount of either $5,000 or 10% of the property’s estimated value, whichever is lower (but not less than $250), and agreeing to pay the costs of the judicial proceeding should the government ultimately prevail. 19 U.S.C. § 1608. If the claimant elects not to file a claim and/or post a bond within twenty days of the issuance of the Notice of Seizure and Intention to Forfeit, however, the government will declare the item forfeited and sell it at public auction. 19 U.S.C. § 1609(a). The effect of such an administrative declaration of forfeiture is the same as a judicial decree of forfeiture. 19 U.S.C. § 1609(b). Sanchez argues that forfeiture was complete on August 22 as the result of his failure to post a bond within twenty days of the August 1 Notice of Seizure and Intent to Forfeit. We reject this contention. The relevant statute says that, “If no ... claim is filed or bond given within ... twenty days ... the appropriate customs officer shall declare the ... vehicle ... forfeited, and shall sell the same at public auction.”" }, { "docid": "3602072", "title": "", "text": "consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). DISCUSSION The Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”) implemented a comprehensive revision of civil asset forfeiture law in the United States through the amendment of three statutes: 18 U.S.C. §§ 983 and 985, and 28 U.S.C. § 2465. In its amendment of 28 U.S.C. § 2465, CAF-RA provided for the payment of attorney fees, litigation costs, and post-judgment interest by the government in certain circumstances. The relevant section of CAFRA, 28 U.S.C. § 2465, provides, in pertinent part: (a) Upon the entry of a judgment for the claimant in any proceeding to condemn or forfeit property seized or arrested under any provision of Federal law (1) such property shall be returned forthwith to the claimant or his agent; and (2) if it appears that there was reasonable cause for the seizure or arrest, the court shall cause a proper certificate thereof to be entered and, in such case, neither the person who made the seizure or arrest nor the prosecutor shall be hable to suit or judgment on account of such suit or prosecution, nor shall the claimant be entitled to costs, except as provided in subsection (b). (b)(1) Except as provided in paragraph (2), in any civil proceeding to forfeit property under any provision of Federal law in which the claimant substantially prevails, the United States shall be liable for— (A) reasonable attorney fees and other litigation costs reasonably incurred by the claimant; (B) post-judgment interest, as set forth in section 1961 of this title [28 USCS § 1961]; and (C) in cases involving currency, other negotiable instruments, or the proceeds of an interlocutory sale (i) interest actually paid to the United States from the date of seizure or arrest of the property that resulted from the investment of the property in an interest-bearing account or instrument; and (ii) an imputed amount of interest that such currency, instruments, or proceeds would have earned at the rate applicable to the 30-day Treasury Bill, for any period during which" }, { "docid": "22236413", "title": "", "text": "cases, except for forfeiture, and the better opinion is that even in seizures for forfeiture the bond may be executed in the. same manner by the claimant. Id., sects. 940, 941. Pursuant to the known and well-recognized practice, the court allowed the claimant to give the bond with sureties approved by the court, and thereupon directed the marshal to surrender the property to the principal in the bond. . Beyond all doubt, therefore, the claimant acquired the possession of the property lawfully and in pursuance of the order of the Admiralty Court. Hearing was subsequently had; and the Admiralty Court entered a decree in the case dismissing the libel, and ordered that the property, consisting of the cargo of the steamboat, be restored to the claimant. Due appeal to the Circuit Court was entered by the libellants; and the record shows that the Circuit Court reversed the decree of the District Court, and adjudged and decreed that the steamboat and her cargo.be condemned as forfeited to the United States. No appeal was ever taken from that decree, and the allegations of the bill of complaint also show that the Circuit Court entered a decree against the claimant and his sureties in the release bond or stipulation for value in the sum of $204,982.28 with interest and costs of suit. Attempt is not made to call in question the jurisdiction of the Admiralty Court, nor of the Circuit Court in the exercise of its appellate power in the case. Nothing can be better settled, said Judge Story, than the proposition that the admiralty may take a fidejussory caution or stipulation in cases in rem, and that they may in a summary manner render judgment and award execution to the prevailing party. Jurisdiction to that effect is vested in the District Court, and for the purposes, of appeal is also possessed by the circuit courts, both courts in such cases being fully authorized to adopt the-process and modes of process belonging to the admiralty, and the district courts have an undoubted right to deliver the property on bail and to enforce conformity" }, { "docid": "11044985", "title": "", "text": "(1st Cir.1978), and adopted by the United States Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Plaintiffs are a “prevailing party” where they have “succeed[ed] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Plaintiff then argues that claimant did not succeed on any significant or substantive issue since settlement negotiations produced a consent decree. We disagree. Here, from the moment that claimant first appeared pro se in the action, the following events transpired. Claimant filed numerous letters to the court explaining that he was incarcerated in New York State; that he himself was not capable of proceeding pro se; and that he had no money to hire counsel. The judge originally assigned the case denied his request for counsel and entered a decree forfeiting the property to the government. Claimant appealed pro se and prevailed at the appellate level as the First Circuit remanded and ordered a readjudication of the forfeiture action and assignment of counsel. After counsel was appointed (and the action was transferred to this judge), instead of a second decree of forfeiture being entered, the parties settled. The agreement called for a division of $110,000, the proceeds of the sale of the properties, whereby claimant's family members divided $65,000 while the government received $45,000. Also, the government assumed the costs of custody, maintenance, and disposition of the property- We think that the above-recited facts clearly demonstrate that claimant meets the “prevailing party” standard. Claimant went from having the property forfeited to the ultimate resolution where family members received almost 60% of the proceeds of the sale of the properties. The fact that this result was arrived at through negotiation and settlement rather than litigation has no bearing as to whether plaintiff “prevailed” in the action. See Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1980); Nadeau, 581 F.2d at 279 (“It is abundantly clear and the Senate Report specifically states that in general ‘parties may be considered to have prevailed when" }, { "docid": "22188148", "title": "", "text": "and show cause why the forfeiture should not be decreed; (3) That an order issue forfeiting the defendant currency to the government; (4) That plaintiff be awarded the costs of this action; and (5) That the court award such other and further relief as it deems just and proper. The affidavit reads: I, Paul J. Markonni, Special Agent for the Drug Enforcement Administration, have read the foregoing complaint for forfeiture and state that the contents are true to the best of my knowledge, information and belief. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. . The warrant specifically states that David must file his claim within ten days of service of the complaint, or within such additional time as the court might allow. . In his motion, David alleged that the complaint should be dismissed because (1) the government’s fourteen month delay in filing its federal forfeiture complaint is improper and unconstitutional, (2) the currency was seized in violation of his fourth amendment rights, (3) the complaint fails to state probable cause, (4) the complaint lacks any factual basis for forfeiture and therefore the claimant cannot properly answer it and (5) the issues in the complaint have been decided by the Clayton County Supreme Court and therefore are \"res judicata.” The court considered and rejected David’s claims of constitutionally impermissible delay and \"res judicata” in the body of its opinion. The other claims were dismissed in a footnote as being without merit. . In his answer, David alleged that (1) the court lacks jurisdiction over the forfeiture action because appellants rule 41(e) motion was pending at the time the complaint was filed, (2) the complaint fails to state a cause of action, (3) David’s fourth amendment rights were violated by the government’s seizure of the defendant, and (4) the complaint fails to state probable cause for seizure. . Supplemental Rule C(6) provides in pertinent part that: The claimant of property that is the subject of an action in rem shall file his claim within 10 days after process has" }, { "docid": "7818943", "title": "", "text": "required that the government proceed seasonably, so that Harold’s right to contest the seizure of his automobile would not be unduly prejudiced. See United States v. $36,125.00 in U.S. Currency, 510 F.Supp. at 307; United States v. $8,850.00, 645 F.2d at 839; Ivers v. United States, 581 F.2d 1362, 1368 (9th Cir. 1978); United States v. One (1) 1972 Wood, 19 Ft. Custom Boat, etc., 501 F.2d 1327, 1329 (5th Cir. 1972) (per curiam). In this case, we think the government sought forfeiture in a timely fashion. The government did not seek forfeiture while Harold’s criminal case was pending in the district court. That criminal case, of course, took precedence and required prompt judicial action. Had the government pursued forfeiture at the same time, it is probable that Harold would have claimed that his defense in the criminal case was being prejudiced. In that case, he contended that the chinaware was not in Customs’ custody at the time of his arrest, and thus he could not be convicted of stealing property from the Customs service. In defense of forfeiture, on the other hand, Harold claimed to the contrary, that the property was in Customs’ possession. A recent Sixth Circuit case illustrates the point. In United States v. U.S. Currency, 626 F.2d 11 (6th Cir. 1980), the district court had dismissed a forfeiture proceeding because the defendant’s vigorous defense of his property through the answering of government interrogatories would have prejudiced his rights in an imminent criminal action arising out of a series of gambling transactions. The appellate court agreed that the defendant would be deprived of putting forth evidence in his behalf in the civil action if he maintained his silence for fear of criminal prosecution, but reversed the action of the district court as too severe; instead the Sixth Circuit in structed the district court to devise a means of accommodating both the criminal and civil cases, suggesting the stay of the forfeiture proceeding until the conclusion of the criminal action as one alternative. In the case before us, the government avoided the prejudice of forcing Harold to raise" }, { "docid": "22643220", "title": "", "text": "any further delay in acting on the petition. On March 10,1977, the Customs Service informed Vasquez that the claim of forfeiture had been referred to the United States Attorney. Within two weeks, a complaint seeking forfeiture under 31 U. S. C. § 1102 was filed in Federal District Court. In answer to the complaint, Vasquez admitted the factual allegations but asserted as one of several affirma tive defenses that the Government’s “dilatory processing” of her petition for remission or mitigation and “dilatory” commencement of the civil forfeiture action violated her right to due process. The District Court, after a 2-day bench trial held in January 1978, determined that the time which had elapsed was reasonable under the circumstances and therefore declared the currency forfeited under 31 U. S. C. § 1102. A divided panel of the Court of Appeals for the Ninth Circuit reversed. 645 F. 2d 836 (1981). Proceeding from the premise that the Government must bring forfeiture actions promptly because seizures infringe upon property rights, the Court of Appeals concluded that the Government’s 18-month delay in filing its forfeiture action was unjustified. The Court of Appeals specifically held that pending administrative or criminal investigations cannot justify the delay when the necessary elements for a forfeiture were established at the time of the seizure and when the claimant seeks a speedy resolution of the claim. The Court of Appeals likewise rejected the Government’s argument that the claimant should be required to show that the delay prejudiced her ability to present a defense to the forfeiture action. As a remedy for the due process violation, the Court of Appeals ordered dismissal of the Government’s forfeiture action. Since other Circuits have determined that pending criminal or administrative investigations and prejudice to the claimant are relevant considerations in determining whether a delay in instituting forfeiture proceedings violates due process, we granted certiorari to resolve the conflict. 455 U. S. 1015 (1982). We reverse. II The due process issue presented here is a narrow one. Vasquez concedes that the Government could constitutionally seize her property without a prior hearing. Nor does Vasquez challenge" }, { "docid": "21842703", "title": "", "text": "Army regulation, although absent without leave and not in custody. The court affirmed the district court’s dismissal of the action on the basis that petitioner could not “invoke the processes of the law while flouting them ... [and] call upon the resources of the Court for determination of his claims.’ ” Id. at 326 (quoting Molinaro, supra). Thus, the District of Columbia, the Fifth and the First Circuits have extended Molinaro to civil lawsuits where the appellant is a fugitive in a related criminal matter. The most closely analogous case, however, is United States v. $83,320 in United States Currency, 682 F.2d 573 (6th Cir. 1982), where the court refused to extend Molinaro to a fugitive who did not appear at sentencing but was challenging the civil forfeiture. The court based its decision on the ground that “the individual accused of the related criminal violation is not necessarily the only individual with a direct, litigable interest in the outcome of the forfeiture action.” Id. at 576. But in so doing the court did not consider that the government was seeking to dismiss only the fugitive’s appeal which would not prejudice any other claimant. In seeking forfeiture under section 231 of the Bank Secrecy Act of 1970, 31 U.S.C. § 5316, the Customs Service notifies any person who appears to have an interest in the seized property of the property’s liability to forfeiture and of the claimant’s right to petition the Secretary of the Treasury for remission or mitigation of the forfeiture. See 19 C.F.R. § 162.31(a) (1982). The regulations require a claimant to file the petition within 60 days. 19 C.F.R. § 171.12(b) (1982). If the claimant does not file a petition, or if the decision on a petition makes legal proceedings appear necessary, the appropriate Customs officer must prepare a full report of the seizure for the United States Attorney. 19 U.S.C. § 1603 (1982). Upon receipt of a report, the United States Attorney is required ‘immediately to inquire into the facts’ and, if it appears probable that a forfeiture has been incurred, ‘forthwith to cause the proper proceedings" }, { "docid": "10553384", "title": "", "text": "OPINION CLAY, Circuit Judge. This is a consolidated appeal involving the determination of rights of innocent third-party lenders, National Realty Finance, L.C. (“NRF”) and LaSalle National Bank (“LNB”), (collectively “Claimants”), in real estate formerly owned by Defendant, William Harris, and forfeited to Plaintiff, the United States of America. Claimants all appeal from the same judgment; specifically, in Case Nos. 99-4175 and 99-4492 involving Claimant NRF, and in Case No. 99-4269 involving Claimant LNB, Claimants appeal from the judgment entered by the district court on September 13, 1999, awarding Claimants “principal and interest on their loans to William Harris at the default rate, and to reasonable costs, late charges and attorney fees,” while denying Claimants “prepayment premiums, or ... late charges beyond those reasonably necessary to reimburse the lenders for transaction costs associated with processing late payments.” The narrow issue on appeal, which presents itself for the first time in a federal appellate court, is whether an innocent lender is entitled to prepayment premiums as provided in the loan agreement upon the real property being forfeited to the government, and later sold by the government, as a result of a criminal forfeiture proceeding against the debtor. We answer this issue in the affirmative under the facts of this case. Accordingly, we REVERSE the district court’s judgment and REMAND the case to the district court. BACKGROUND Procedural History This case involves a criminal forfeiture in which Defendant was indicted on various charges of Medicare fraud and money laundering on September 23, 1998. On January 20, 1999, the government accepted Defendant’s guilty plea wherein Defendant withdrew his previous plea of not guilty, and entered a written plea agreement to charges 1 and 101 of the indictment. On this date, the government also moved for a preliminary order of forfeiture, which was granted; while Defendant waived notice of forfeiture as well as the right to appeal the order of forfeiture. The property seized by the government included real estate owned by Harris Management Service, Inc. (“HMSI”), an Ohio Corporation wholly owned by Defendant and his wife. Claimants in this matter are innocent third party" }, { "docid": "565363", "title": "", "text": "reasons, the order of the district court denying costs and attorneys’ fees to Claire Soule is Affirmed. No costs. . For a more detailed version of the factual background in this case, see United States v. 255 Broadway, 795 F.Supp. 1225 (D.Mass.1992). . 21 U.S.C. 881(a)(6) states that the following shall be subject to forfeiture: All moneys, negotiable instruments, securities or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this sub-chapter, except that no property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without knowledge or consent of that owner. .21 U.S.C. § 881(b) provides, in relevant part, that “[a]ny property subject to forfeiture to the United States under this subchapter may be seized by the Attorney General upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims.\" The warrant and monition in this case was issued pursuant to these Supplemental Rules. See, e.g., United States v. Approximately Two Thousand, Five Hundred Thirty-Eight Point Eighty-Five Shares of Stock, 988 F.2d 1281, 1283-84 (1st Cir.1993). . Though the appellate record is not entirely clear, the $3171 found in the leather bag appears to have been subject to administrative, rather than judicial, forfeiture. . 28 U.S.C. § 2465 provides: Upon the entry of judgment for the claimant in any proceeding to condemn or forfeit property seized under any Act of Congress, such property shall be returned forthwith to the claimant or his agent; but if it appears that there was reasonable cause for the seizure, the court shall cause a proper certificate thereof to be entered and the claimant shall not, in such case, be entitled to costs, nor shall the person who made the seizure, nor the prosecutor, be liable to suit" }, { "docid": "3893842", "title": "", "text": "recognize their legal interests in the forfeited property. See U.S. v. BCCI Holdings (Luxembourg), S.A. (Petition of Bank of California International), 980 F.Supp. 522 (D.D.C.1997) (the preliminary order may be amended as often as necessary to include additional property subject to forfeiture that the Government may identify through post-trial discovery). The procedure adopted by this Court has been ratified by the Proposed Rule 32.2 of the Federal Rules of Criminal Procedure, which is likely to take effect on December 1, 2000. B. Liquidation of Uncontested Forfeited Property The property listed in the Preliminary Order of Forfeiture (January 24, 1992) and in the First Supplemental List of Forfeited Property (January 31, 1992), consisted primarily of deposits in various bank accounts. These assets, and many others that were subsequently added to the Preliminary Order, were entrusted to the U.S. Marshals Service to collect, invest, and disburse pursuant to subsequent orders of the Court. In a number of instances, where the forfeited asset was residential real property, for example, or undeveloped land, the Marshals Service liquidated the property in accordance with its normal procedures in forfeiture cases. In several instances, it appeared that the storage and maintenance costs associated with a particular asset could be mitigated by authorizing the Marshals to dispose of the property in an interlocutory sale. In these instances, the defendants had no objection to the interlocutory sale, but the property was the subject of a third-party claim that was then pending in the ancillary proceeding. To minimize unnecessary costs to the Government, while protecting the rights of the third-party claimants, the Court issued an order to show cause why the property could not be reduced to cash, with the cash becoming the subject of the third-party claim. In each instance where this procedure was employed, the third-party claimants offered no objection to the interlocutory sale, and the property was then liquidated by the Marshals. In all of these instances, the U.S. Marshals Service provided outstanding service to the Court, the Government, the Court Appointed Fiduciaries and the victims of the defendants’ fraud. The Marshals managed an inventory of over" } ]

[ { "docid": "12061019", "title": "", "text": "a firearm during a drug offense need not be illegal to warrant the application of § 2D1.1(b). See United States v. Otero, 868 F.2d 1412, 1414-15 (5th Cir.1989). Thus, whether the gun was an “integral part of” the crime, United States v. Robinson, 857 F.2d 1006, 1010 (5th Cir.1988) (requisite proof of a violation of 18 U.S.C. § 924(c)(2), firearm use in connection with a drug trafficking crime), or otherwise sufficiently connected with the crime to warrant prosecution under an independent firearm offense, is irrelevant. “[Fjirearm use or possession per se is a permissible basis for upward adjustment.” See Otero, 868 F.2d at 1414. In this case, the gun was in a box in the back seat of the car. The district court was not obligated to credit the defendants’ assertions that the gun had been a gift to Smith and was only coincidentally in the car while they transported 76 pounds of marijuana from Texas to South Carolina. Enhancement would be inappropriate, the Commentary to § 2Dl.l(b) suggests, “if the defendant, arrested at his residence, had an unloaded hunting rifle in his closet.” Sentencing Guidelines Application Note 3, at 2.40; see also United States v. Vasquez, 874 F.2d 250 (5th Cir.1989). The circumstances of this case do not approach this example of weapon possession unconnected to the offense. The district court discredited the defendants’ explanation of the gun’s presence in the car and emphasized the concern expressed in the guidelines that weapons and drugs are a dangerous combination. See Sentencing Guidelines Application Note 3, at 2.40. The district court did not err in adding two levels because a firearm was possessed during commission of the offense. AFFIRMED." } ]

[ { "docid": "328727", "title": "", "text": "For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet. Courts addressing the proper application of this Note have generally limited its use to cases involving facts nearly identical to those of the hypothetical. For example, in a case closely analogous to Garcia’s, United States v. Franklin, 896 F.2d 1063, 1065-66 (7th Cir.1990), we affirmed a section 2D1.1(b)(1) two-level enhancement when three loaded handguns were found in the same house as cocaine and various equipment used for its manufacture and distribution. In Durrive, this court also upheld a § 2D1.1(b)(1) sentence enhancement when the police discovered a .357 revolver in a closet of the defendant’s apartment which had been used as the drug conspiracy’s base of operations, even though no drugs were found in the apartment. Durrive, at 1230-32. Similarly, in United States v. Green, 889 F.2d 187 (8th Cir.1989), the court held that the Application Note 3 exception did not apply because the firearm was not a hunting weapon and was kept at a residence which was the principal base of the drug operation. Consequently, it upheld the defendant’s sentence enhancement for possession of an unloaded, single shot .22 pistol. Id. at 188-89; see also United States v. Holland, 884 F.2d 354, 358-59 (8th Cir.) (enhancement justified when two handguns found in defendant’s home where drugs seized), cert. denied, — U.S. —, 110 S.Ct. 552, 107 L.Ed.2d 549 (1989); United States v. McGhee, 882 F.2d 1095, 1096 (6th Cir.1989) (guns concealed in hidden compartments, although not readily accessible to defendant, sufficient to justify enhancement for possession during offense); but see United States v. Rodriguez-Nuez, 919 F.2d 461, 466-467 (7th Cir.1990) (enhancement not justified when distance of several miles separated the firearms found at defendant’s residence and the location of the drugs). In light of the case law interpreting U.S. S.G. § 2Dl.l(b)(l) and Application Note 3, the facts of this case clearly support an upward adjustment in the offense level. Like the firearm in Green, the weapon involved here, a 9mm automatic pistol, is a handgun" }, { "docid": "7290773", "title": "", "text": "drugs seized from same closet); United States v. Restrepo, 884 F.2d 1294, 1296-97 (9th Cir.1989) (loaded automatic pistol found between mattress and box spring in home where drugs seized); United States v. Holland, 884 F.2d 354, 358-59 (8th Cir.1989) (two handguns found in defendant’s residence where drugs seized); United States v. McGhee, 882 F.2d 1095, 1096 (6th Cir.1989) (weapons concealed in secret compartment of walls along with cocaine); United States v. Hewin, 877 F.2d 3, 4 (5th Cir.1989) (handgun discovered on backseat of automobile containing marijuana in trunk); United States v. Jones, 875 F.2d 674, 675-76 (8th Cir.) (per curiam) (gun found in close proximity to drugs seized), cert. denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. White, 875 F.2d 427, 433 (4th Cir.1989) (loaded handgun under driver’s seat of automobile in which drugs seized from passenger); United States v. Otero, 868 F.2d 1412, 1414-15 (5th Cir.1989) (drugs seized in defendant’s hotel room and handgun found in defendant’s van parked outside hotel); cf. United States v. Vasquez, 874 F.2d 250, 251 (5th Cir.1989) (error to enhance sentence where police found loaded pistol in defendant’s bedroom, but his arrest occurred several miles away at the scene of the purchase, and the government failed to show that the gun and the drugs were ever less than several miles apart). III. CONCLUSION We find that under the facts of this case, it is not “clearly improbable” that Franklin’s weaponry was connected to his drug offense. The district court’s findings of fact were not clearly erroneous, and, giving due deference to the sentencing court’s application of the Guidelines to those facts, we find no error. Franklin’s sentence is therefore Affirmed. . Section 2D1.1(b)(1) of the Guidelines provides, \"If a dangerous weapon (including a firearm) was possessed during commission of the offense, increase by 2 levels.” See also Guidelines § 5K2.6." }, { "docid": "7290772", "title": "", "text": "cellular phone from Rush’s car found a loaded pistol behind a loose rear seat backrest. We noted that Rush’s car was “an essential part of the crime of possession with intent to distribute” and that the loaded handgun provided some measure of comfort to one in the perilous drug trade. Id. at 52. The nexus between Franklin’s crime and the possession of loaded weapons is more compelling than was the case in Rush. The defendant in Rush could at least raise the futile argument that his crime was interrupted before he was in the presence of his weapon. Franklin does not and cannot dispute the propinquity of his offense and his loaded firearms. Several courts of appeals have similarly interpreted the section 2D1.1(b)(1) sentence enhancement provision and upheld its application in a variety of circumstances. See United States v. Paulino, 887 F.2d 358, 360 (1st Cir.1989) (loaded semi-automatic pistol found in same building as illegal narcotic and in same room as drug proceeds); United States v. Gillock, 886 F.2d 220, 222-23 (9th Cir.1989) (weapons and drugs seized from same closet); United States v. Restrepo, 884 F.2d 1294, 1296-97 (9th Cir.1989) (loaded automatic pistol found between mattress and box spring in home where drugs seized); United States v. Holland, 884 F.2d 354, 358-59 (8th Cir.1989) (two handguns found in defendant’s residence where drugs seized); United States v. McGhee, 882 F.2d 1095, 1096 (6th Cir.1989) (weapons concealed in secret compartment of walls along with cocaine); United States v. Hewin, 877 F.2d 3, 4 (5th Cir.1989) (handgun discovered on backseat of automobile containing marijuana in trunk); United States v. Jones, 875 F.2d 674, 675-76 (8th Cir.) (per curiam) (gun found in close proximity to drugs seized), cert. denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. White, 875 F.2d 427, 433 (4th Cir.1989) (loaded handgun under driver’s seat of automobile in which drugs seized from passenger); United States v. Otero, 868 F.2d 1412, 1414-15 (5th Cir.1989) (drugs seized in defendant’s hotel room and handgun found in defendant’s van parked outside hotel); cf. United States v. Vasquez, 874 F.2d" }, { "docid": "1355612", "title": "", "text": "enhancement to a va riety of factual circumstances. See United States v. McGhee, 882 F.2d 1095, 1096 (6th Cir.1989) (rifles and handguns concealed in secret compartment of walls where cocaine seized); United States v. Hewin, 877 F.2d at 4 (pistol found on backseat of car where marijuana seized in trunk); United States v. Restrepo, 884 F.2d 1294, 1296-97 (9th Cir.1989) (automatic pistol found in mattress of home where drugs were seized); United States v. Gillock, 886 F.2d 220, 222-23 (9th Cir.1989) (weapons and drugs seized from same closet); United States v. Holland, 884 F.2d 354, 358-59 (8th Cir.1989) (two pistols found in defendant’s residence where amphetamines seized); United States v. Jones, 875 F.2d 674, 675-76 (8th Cir.), cert. denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989) (per curiam) (gun found in close proximity to drugs seized); United States v. White, 875 F.2d 427, 433 (4th Cir.1989) (loaded pistol under driver’s seat of car where drugs were seized from passenger). The Court of Appeals for the Fifth Circuit has decided two cases specifically describing the factual limits for applying the sentence enhancement of section 2D1.-1(b)(1). See United States v. Otero, 868 F.2d 1412 (5th Cir.1989); United States v. Vasquez, 874 F.2d 250 (5th Cir.1989). In Otero, the court applied the sentence enhancement where agents seized cocaine in the defendant’s hotel room and then found a handgun in the defendant’s van parked outside the hotel. 868 F.2d at 1414-15. The court found that the drugs were transported in the van with the firearm in the defendant’s possession. Id. at 1415. Thus, the court concluded that the defendant “constructively possessed” the weapon during the offense. Id. In Vasquez, however, the court refused to apply the sentence enhancement when the defendant was arrested for buying cocaine from a government agent several miles from defendant’s residence where the handgun was found. 874 F.2d at 251. The court found that the drugs seized were furnished by the government and never reached the defendant’s apartment. Therefore, the court concluded that “there is no showing that the gun and drugs were ever less than several" }, { "docid": "22575854", "title": "", "text": "v. Hewin, 877 F.2d 3, 5 (5th Cir.1989) (same; pistol in back seat of car carrying marijuana in trunk). Here, the weapon was closely linked to the very powers and office which appellant used to implement his felonious activities. The knowledge that Ruiz carried a gun quite probably instilled confidence in those who relied upon him for protection in exchange for drugs, and fear in those who dealt with his suppliers. The fact that Ruiz was compelled to carry the gun by virtue of his employment was, of course, to be considered — but that fact alone did not make it “clearly improbable” that the weapon was connected with the drug offenses. Cf., e.g., Otero, 868 F.2d at 1415 (enhancement for possession of firearm “not dependent on whether the weapon is carried illegally”). After all, where there is more than one plausible view of the circumstances, the sentencing court’s choice among supportable alternatives cannot be clearly erroneous. See United States v. Jimenez-Otero, 898 F.2d 813, 814 (1st Cir.1990); see also Mocciola, 891 F.2d at 17 (even where defendant had been acquitted on weapons charge, district court’s factual finding that connection between gun and drug offense was not “clearly improbable” could be upheld on appeal). 3. Cocaine Quantity. Defendant’s second bolt takes aim at the lower court’s finding that his offenses involved between 5 and 14.9 kilograms of cocaine. We believe that this fulguration sheds more heat than light. At the sentencing hearing, the court made specific findings with respect to the amount of cocaine involved in Ruiz’s offenses. These findings were based upon both trial testimony and the PSI Report. At the sentencing hearing, appellant produced no contrary evidence. Under these circumstances, a sentencing judge may rely on the contents of the PSI Report. See United States v. Rivera Ramos, 856 F.2d 420, 424 (1st Cir.1988), cert. denied, — U.S. -, 110 S.Ct. 118, 107 L.Ed.2d 79 (1989). He or she may likewise rely on evidence presented at defendant’s trial in resolving disputed facts. See United States v. Wise, 881 F.2d 970, 973 (11th Cir.1989). Reading the record renders it" }, { "docid": "1355611", "title": "", "text": "136-37 (5th Cir.1989); United States v. Hewin, 877 F.2d 3, 4 (5th Cir.1989). Furthermore, a court of appeals “shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e). See United States v. Wright, 873 F.2d 437, 443-44 (1st Cir.1989); United States v. Mejia-Orosco, 867 F.2d 216, 217-19 (5th Cir.), clarified on pet. for reh’g, 868 F.2d 807, cert. denied, — U.S. -, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989). III. The Sentencing Guidelines clearly contemplate the imposition of a two-level increase in defendant’s sentence “if a firearm or other dangerous weapon was possessed during the commission of the of-fense_” Guidelines Manual, U.S. Sentencing Commission § 2Dl.l(b)(l) (1987) [hereinafter “Sentencing Guidelines”]. The defendant argues that the mere “presence” of a firearm in the apartment where no drugs were found does not rise to the level of “possession” contemplated by the Sentencing Guidelines. Several courts of appeals have recently applied this sentence enhancement to a va riety of factual circumstances. See United States v. McGhee, 882 F.2d 1095, 1096 (6th Cir.1989) (rifles and handguns concealed in secret compartment of walls where cocaine seized); United States v. Hewin, 877 F.2d at 4 (pistol found on backseat of car where marijuana seized in trunk); United States v. Restrepo, 884 F.2d 1294, 1296-97 (9th Cir.1989) (automatic pistol found in mattress of home where drugs were seized); United States v. Gillock, 886 F.2d 220, 222-23 (9th Cir.1989) (weapons and drugs seized from same closet); United States v. Holland, 884 F.2d 354, 358-59 (8th Cir.1989) (two pistols found in defendant’s residence where amphetamines seized); United States v. Jones, 875 F.2d 674, 675-76 (8th Cir.), cert. denied, — U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989) (per curiam) (gun found in close proximity to drugs seized); United States v. White, 875 F.2d 427, 433 (4th Cir.1989) (loaded pistol under driver’s seat of car where drugs were seized from passenger). The Court of Appeals for the Fifth Circuit has decided two cases specifically" }, { "docid": "6755503", "title": "", "text": "(5th Cir.1989) (same; pistol in back seat of car carrying marijuana in trunk). Here, the weapon was closely linked to the very powers and office which appellant used to implement his felonious activities. The knowledge that Ruiz carried a gun quite probably instilled confidence in those who relied upon him for protection in exchange for drugs, and fear in those who dealt with his suppliers. The fact that Ruiz was compelled to carry the gun by virtue of his employment was, of course, to be considered — but that fact alone does not make it “clearly improbable” that the weapon was connected with the drug offenses. Id., at 507-508 (emphasis added). As the Court understands the parties’ argument here, they contend both: 1) that the fact that Muxlow was required to carry her weapon as part of her uniform as a police officer renders it “clearly improbable” that the handgun was connected with the drug distribution offense to which she pleaded guilty; and 2) even if Muxlow’s possession of the weapon were connected to the drug offense, possession of the weapon is already subsumed in the 2-level increase required by Guideline 3B1.3. As to the first argument, the Court agrees with, and adopts, the reasoning of the Ruiz court. Although Muxlow would have carried the handgun even if she had not committed the drug offense, the converse is unlikely. If she did not have the handgun as part of her uniform as a police officer, the Court believes she might well not have ventured into such a high risk circumstance as to stop a suspected drug dealer and confiscate the drugs. Similarly, it is unlikely that she would have distributed a substantial quantity of cocaine to the informant without the confidence that possession of the handgun undoubtedly instilled in her. Therefore, the Court concludes that Muxlow’s possession of the handgun was connected to the drug offense, and the 2-level increase in Muxlow's base offense level is warranted pursuant to Guideline 2Dl.l(b)(l). To carve out a special exception to Guideline 2D 1.1(b)(1) for police officers who carry weapons as part of" }, { "docid": "8397090", "title": "", "text": "the Commentary states that “the adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Id. (emphasis added). Our circuit has adopted this “clearly improbable” standard. See, e.g., United States v. Ruiz, 905 F.2d 499, 507 (1st Cir.1990); United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989). The following undisputed facts were before the district court. Found at defendant’s residence were six operable firearms. Three of these firearms were loaded, three were handguns, and one was within defendant’s arm reach. Also found at defendant’s residence were 64.34 grams of cocaine, two surveillance cameras, a closed circuit television system to monitor the driveway and the front of the residence, $1000.00 in cash, notebooks denoting drug transactions, written materials indi- eating a trip or trips to Florida (the location of defendant’s drug source), a set of gram scales, and other drug paraphernalia. With these facts as a backdrop, the district court was permitted to make the reasonable inference that defendant used one or more of the firearms to protect his drug operation. Cf. United States v. Rodriguez, 897 F.2d 1324, 1326 (5th Cir.1990) (“[T]he court is permitted to make inferences from the facts, and these inferences are factfindings reviewed under a clearly erroneous standard_”). At the very least, the court committed no “clear error” in finding that it was not “clearly improbable” that the firearms were connected to the offense of conspiracy to distribute cocaine. See, e.g., United States v. Paulino, 887 F.2d 358, 360 (1st Cir.1989) (upholding enhancement where police found loaded firearm in bureau drawer of bedroom where cocaine was stored, as well as $44,-690 in cash, personal papers belonging to defendant, and a drug ledger); United States v. Wayne, 903 F.2d 1188 (8th Cir.1990) (upholding enhancement where at defendant’s home “the police seized a loaded .357 Smith & Wesson handgun, a 9 millimeter Luger handgun, and a 12-gauge shotgun” and where “[tjhere was substantial evidence that [defendant] conducted his narcotic activities from his home”); United States v. Green, 889 F.2d 187, 189 (8th Cir.1989) (Defendant’s “undenied" }, { "docid": "8806744", "title": "", "text": "a firearm during the commission of the offense pursuant to § 2D1.1(b)(1) of the Sentencing Guidelines. The notes to § 2D1.1(b)(1) indicate that “[t]he enhancement for weapon possession ... should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2Dl.l(b)(l), n. 3. The district court found that the pistol located in Lewis’ apartment could not be attributed to Turpin. The court credited the testimony of Anthony Whitehead, who stated that he saw a Smith & Wesson 9 millimeter pistol in the Beretta between Turpin and Williams. We give “due regard” to the district court’s determination of Whitehead’s credibility. 18 U.S.C. § 3742(e) (1988). Mere presence of the gun is not sufficient to justify sentence enhancement. The government must prove a connection between the gun and the criminal activity. United States v. Khang, 904 F.2d 1219, 1225 (8th Cir.1990). This does not require a showing that Turpin “ever used or even touched the [gun].” United States v. Luster, 896 F.2d 1122, 1129 (8th Cir.1990). Constructive possession will suffice to justify an upward adjustment for possession of a firearm during the commission of an offense. Id. Moreover, the single gun may justify an enhancement of the sentences of both Turpin and Williams, since possession of a gun by either would suffice to justify an upward adjustment of the other’s offense level if it was reasonably foreseeable that one of them would possess a gun in furtherance of the jointly undertaken criminal activity. United States v. Barragan, 915 F.2d 1174, 1179 (8th Cir.1990). We previously have upheld upward adjustments when guns have been present in automobiles or houses connected with drug activity. E.g., United States v. Figueroa, 900 F.2d 1211, 1218 (8th Cir.) (gun present under seat in car defendant was driving), cert. denied, 110 S.Ct. 3228 (1990); Luster, supra, 896 F.2d at 1128-29 (unloaded rifle in living room during drug transaction); United States v. Green, 889 F.2d 187, 189 (8th Cir.1989) (gun present in defendant’s apartment in which drug sales were transacted); United States v. Koonce, 884 F.2d 349," }, { "docid": "16062109", "title": "", "text": "hunting rifle in the closet.” Id. § 2D1.1, comment, (n. 3). Dillard argues that his case provides another example of when “it is clearly improbable that the weapon was connected with the offense.” He points out that he carried his firearm as part of his status as a sheriff. This does not mean, however, that the weapon could not be connected with the offense. The First Circuit has explained the connection as follows: Here, the weapon was closely linked to the very powers and office which appellant used to implement his felonious activities. The knowledge that Ruiz carried a gun quite probably instilled confidence in those who relied upon him for protection in exchange for drugs, and fear in those who dealt with his suppliers. The fact that Ruiz was compelled to carry the gun by virtue of his employment was, of course, to be considered— but that fact alone did not make it “clearly improbable” that the weapon was connected with the drug offenses. United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990). Thus, we cannot find that the district court’s conclusion that Dillard possessed the weapon in connection with the offense was clearly erroneous. VII Jordan contends that the district court committed reversible error in referring to count four of the indictment during voir dire. He argues that the references to count four, although not intentionally made, were inherently prejudicial because “[s]ueh information presented the majority of the jury with essentially ‘evidence of another offense upon which the defendants were not being tried,’ and may have led to the contamination of the other three members of the jury.” Br. of Jordan at 9. The standard of review of a trial judge’s conduct of a voir dire examination is whether the defendant can demonstrate manifest error. See United States v. Blanton, 719 F.2d 815, 829-30 (6th Cir.1983) (en banc), cert. denied, 465 U.S. 1099, 104 S.Ct. 1592, 80 L.Ed.2d 125 (1984). Jordan moved the trial court to disqualify the jury panel due to the trial court’s brief and inadvertent mention, during voir dire, of a “fourth count” in" }, { "docid": "16062108", "title": "", "text": "534 F.2d 667, 674 (6th Cir.1976). VI Dillard contends that the district court erred in adding two levels, for purposes of sentencing, for the possession of a firearm. We review a district court’s factual findings in connection with sentencing under a “clearly erroneous” standard, United States v. Luster, 889 F.2d 1523, 1525 (6th Cir.1989), giving “due deference” to the sentencing court’s application of the guidelines to the facts. 18 U.S.C. § 3742(e) (1988). The application of the guidelines to an undisputed set of facts is, however, reviewed de novo. See, e.g., United States v. Wilson, 920 F.2d 1290, 1294 (6th Cir.1990). The sentencing guidelines provide that “[i]f a dangerous weapon (including a firearm) was possessed, increase by 2 levels.” United States Sentencing Commission, Guidelines Manual § 2D1.1(b)(1) (Nov.1991) [hereinafter U.S.S.G.]. The commission explains that “[t]he adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, the enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet.” Id. § 2D1.1, comment, (n. 3). Dillard argues that his case provides another example of when “it is clearly improbable that the weapon was connected with the offense.” He points out that he carried his firearm as part of his status as a sheriff. This does not mean, however, that the weapon could not be connected with the offense. The First Circuit has explained the connection as follows: Here, the weapon was closely linked to the very powers and office which appellant used to implement his felonious activities. The knowledge that Ruiz carried a gun quite probably instilled confidence in those who relied upon him for protection in exchange for drugs, and fear in those who dealt with his suppliers. The fact that Ruiz was compelled to carry the gun by virtue of his employment was, of course, to be considered— but that fact alone did not make it “clearly improbable” that the weapon was connected with the drug offenses. United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990)." }, { "docid": "22144443", "title": "", "text": "at 557; 18 U.S.C.A. § 3742(e) (West Supp.1989). We consider first whether the court construed the Guidelines correctly. The court must increase the base offense level by two levels if “a firearm or other dangerous weapon was possessed during commission of the [drug] offense.” Sentencing Guidelines § 2Dl.l(b)(l) (emphasis added). This enhancement “reflects the increased danger of violence when drug traffickers possess weapons.” Id. § 2D1.1 at commentary note 3. Restrepo argues that § 2D1.1(b)(1) requires the court to find a connection be tween the weapon and the offense in order to enhance the base offense level. We construe the terms in the Sentencing Guidelines using their plain meaning. See United States v. Hoflin, 880 F.2d 1033, 1036 (9th Cir.1989). We hold that, in applying § 2D1.1(b)(1), the court need not find a connection between the firearm and the offense. If it finds that the defendant possessed the weapon during the commission of the offense, the enhancement is appropriate. The judge reasonably inferred from the evidence that Restrepo possessed the weapon during the commission of the offense. Several of the offenses charged took place at his residence. Agents found the loaded automatic pistol hidden between the mattress and the box spring of his bed, in the same room as equipment used for drug distribution. They also found drugs in several places in his home. See United States v. Gillock, 886 F.2d 220, 222 (9th Cir.1989) (sentence enhanced because weapon found in closet with drugs); United States v. Jones, 875 F.2d 674, 676 (8th Cir.1989) (per curiam) (sentence enhanced because firearms were located in close proximity to drugs); United States v. Otero, 868 F.2d 1412, 1415 (5th Cir.1989); cf. United States v. Vasquez, 874 F.2d 250, 251 (5th Cir.1989) (error to enhance sentence where police found a loaded .38 caliber pistol in defendant’s bedroom, but his arrest occurred several miles away at the scene of the purchase, and the government made no showing that the gun and drugs were ever less than several miles apart). The court’s finding that Restrepo possessed the firearm during at least one of the offenses is" }, { "docid": "22144444", "title": "", "text": "the offense. Several of the offenses charged took place at his residence. Agents found the loaded automatic pistol hidden between the mattress and the box spring of his bed, in the same room as equipment used for drug distribution. They also found drugs in several places in his home. See United States v. Gillock, 886 F.2d 220, 222 (9th Cir.1989) (sentence enhanced because weapon found in closet with drugs); United States v. Jones, 875 F.2d 674, 676 (8th Cir.1989) (per curiam) (sentence enhanced because firearms were located in close proximity to drugs); United States v. Otero, 868 F.2d 1412, 1415 (5th Cir.1989); cf. United States v. Vasquez, 874 F.2d 250, 251 (5th Cir.1989) (error to enhance sentence where police found a loaded .38 caliber pistol in defendant’s bedroom, but his arrest occurred several miles away at the scene of the purchase, and the government made no showing that the gun and drugs were ever less than several miles apart). The court’s finding that Restrepo possessed the firearm during at least one of the offenses is not clearly erroneous. The Commentary to Sentencing Guidelines § 2D 1.1 provides an exception to the enhancement rule. Enhancement is not appropriate if the court finds that “it is clearly improbable that the weapon was connected with the offense.” Sentencing Guidelines § 2D1.1 at commentary note 3. The Commentary interprets the Guidelines and explains their application. Id. § 1B1.7. Failure by the trial judge to follow the Commentary may constitute an incorrect application of the Guidelines. Id. Restrepo argued for the application of the exception at his sentencing hearing. The court distinguished this case from an example in the Guidelines Commentary. The enhancement does not apply where a defendant is arrested with an unloaded hunting rifle in his closet. Id. § 2D 1.1 at commentary note 3. The facts demonstrate it was not clearly improbable that the weapon found in his bed was connected with the drug offenses. Restrepo argues that the exception in the Guidelines Commentary violates the Due Process Clause by placing the burden on him to show that there was no connection" }, { "docid": "22575853", "title": "", "text": "a means of facilitating his avocation as a criminal. We cannot say the district court’s finding in this respect was clearly wrong. Mere possession of a firearm can trigger the two level increase; there is no requirement that the gun actually be used in perpetrating the drug crime, or that such use be intended. See, e.g., United States v. Green, 889 F.2d 187, 189 (8th Cir.1989) (increase upheld when unloaded handgun discovered in apartment where defendant conducted drug transactions); United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989) (so long as possession proven, no requirement to prove that defendant would have used weapon to advance commission of drug offense); Paulino, 887 F.2d at 360 (same; pistol was in bureau drawer in room where cocaine concealed); United States v. Res-tregó, 884 F.2d 1294, 1295-96 (9th Cir.1989) (same; automatic pistol hidden in mattress in stash house); United States v. Holland, 884 F.2d 354 (8th Cir.) (same; pistol found in briefcase along with drug paraphernalia), cert. denied, — U.S.-, 110 S.Ct. 552, 107 L.Ed.2d 549 (1989); United States v. Hewin, 877 F.2d 3, 5 (5th Cir.1989) (same; pistol in back seat of car carrying marijuana in trunk). Here, the weapon was closely linked to the very powers and office which appellant used to implement his felonious activities. The knowledge that Ruiz carried a gun quite probably instilled confidence in those who relied upon him for protection in exchange for drugs, and fear in those who dealt with his suppliers. The fact that Ruiz was compelled to carry the gun by virtue of his employment was, of course, to be considered — but that fact alone did not make it “clearly improbable” that the weapon was connected with the drug offenses. Cf., e.g., Otero, 868 F.2d at 1415 (enhancement for possession of firearm “not dependent on whether the weapon is carried illegally”). After all, where there is more than one plausible view of the circumstances, the sentencing court’s choice among supportable alternatives cannot be clearly erroneous. See United States v. Jimenez-Otero, 898 F.2d 813, 814 (1st Cir.1990); see also Mocciola, 891 F.2d at 17" }, { "docid": "6755501", "title": "", "text": "was merely part of his uniform, and, therefore, Guideline 2Dl.l(b)(l) did not justify an increase in the offense level. The court rejected this argument. 2. The Firearm Enhancement. Ruiz challenges the district court’s elevation of the BOL pursuant to U.S.S.G. § 2Dl.l(b)(l) because a firearm was possessed during commission of the drug offense. The Sentencing Commission has advised judges to make the adjustment if a firearm or other dangerous weapon was present during the crime’s commission “unless it is clearly improbable that the weapon was connected with the offense. ” Id. (commentary). We, and other courts, have accepted that advice according to its tenor. See, e.g., [United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989) ]; United States v. Otero, 868 F.2d 1412, 1414 (5th Cir.1989). In this case, Ruiz argues that the connection between the weapon and the offense was far too tenuous since he lawfully carried the firearm incidental to his vocation as a police officer rather than as a means of facilitating his avocation as a criminal. We cannot say the district court’s finding in this respect was clearly wrong. Mere possession of a firearm can trigger the two level increase; there is no requirement that the gun actually be used in perpetrating the drug crime, or that such use be intended. See, e.g., United States v. Green, 889 F.2d 187, 189 (8th Cir.1989) (increase upheld when unloaded handgun discovered in apartment where defendant conducted drug transactions); United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989) (so long as possession proven, no requirement to prove that defendant would have used weapon to advance commission of drug offense); [United States v. Paulino, 887 F.2d 358, 360 (1st Cir.1989) ] (same; pistol was in bureau drawer in room where cocaine concealed); United States v. Restrepo, 884 F.2d 1294, 1295-1296 (9th Cir.1989) (same; automatic pistol hidden in mattress in stash house); United States v. Holland, 884 F.2d 354 (8th Cir.) (same; pistol found in briefcase along with drug paraphernalia), cert. denied, — U.S. —, 110 S.Ct. 552, 107 L.Ed.2d 549 (1989); United States v. Hewin, 877 F.2d 3, 5" }, { "docid": "6755502", "title": "", "text": "district court’s finding in this respect was clearly wrong. Mere possession of a firearm can trigger the two level increase; there is no requirement that the gun actually be used in perpetrating the drug crime, or that such use be intended. See, e.g., United States v. Green, 889 F.2d 187, 189 (8th Cir.1989) (increase upheld when unloaded handgun discovered in apartment where defendant conducted drug transactions); United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989) (so long as possession proven, no requirement to prove that defendant would have used weapon to advance commission of drug offense); [United States v. Paulino, 887 F.2d 358, 360 (1st Cir.1989) ] (same; pistol was in bureau drawer in room where cocaine concealed); United States v. Restrepo, 884 F.2d 1294, 1295-1296 (9th Cir.1989) (same; automatic pistol hidden in mattress in stash house); United States v. Holland, 884 F.2d 354 (8th Cir.) (same; pistol found in briefcase along with drug paraphernalia), cert. denied, — U.S. —, 110 S.Ct. 552, 107 L.Ed.2d 549 (1989); United States v. Hewin, 877 F.2d 3, 5 (5th Cir.1989) (same; pistol in back seat of car carrying marijuana in trunk). Here, the weapon was closely linked to the very powers and office which appellant used to implement his felonious activities. The knowledge that Ruiz carried a gun quite probably instilled confidence in those who relied upon him for protection in exchange for drugs, and fear in those who dealt with his suppliers. The fact that Ruiz was compelled to carry the gun by virtue of his employment was, of course, to be considered — but that fact alone does not make it “clearly improbable” that the weapon was connected with the drug offenses. Id., at 507-508 (emphasis added). As the Court understands the parties’ argument here, they contend both: 1) that the fact that Muxlow was required to carry her weapon as part of her uniform as a police officer renders it “clearly improbable” that the handgun was connected with the drug distribution offense to which she pleaded guilty; and 2) even if Muxlow’s possession of the weapon were connected to the" }, { "docid": "22575852", "title": "", "text": "erroneous” and “give due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e); see United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989); United States v. Paulino, 887 F.2d 358, 359 (1st Cir.1989). 2. The Firearm Enhancement. Ruiz challenges the district court’s elevation of the BOL pursuant to U.S.S.G. § 2D1.1(b)(1) because a firearm was possessed during commission of the drug offense. The Sentencing Commission has advised judges to make the adjustment if a firearm or other dangerous weapon was present during the crime’s commission “unless it is clearly improbable that the weapon was connected with the offense.” Id. (commentary). We, and other courts, have accepted that advice according to its tenor. See, e.g., Mocciola, 891 F.2d at 17; Paulino, 887 F.2d at 360; United States v. Otero, 868 F.2d 1412, 1414 (5th Cir.1989). In this case, Ruiz argues that the connection between weapon and offense was far too tenuous since he lawfully carried the firearm incidental to his vocation as a police officer rather than as a means of facilitating his avocation as a criminal. We cannot say the district court’s finding in this respect was clearly wrong. Mere possession of a firearm can trigger the two level increase; there is no requirement that the gun actually be used in perpetrating the drug crime, or that such use be intended. See, e.g., United States v. Green, 889 F.2d 187, 189 (8th Cir.1989) (increase upheld when unloaded handgun discovered in apartment where defendant conducted drug transactions); United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989) (so long as possession proven, no requirement to prove that defendant would have used weapon to advance commission of drug offense); Paulino, 887 F.2d at 360 (same; pistol was in bureau drawer in room where cocaine concealed); United States v. Res-tregó, 884 F.2d 1294, 1295-96 (9th Cir.1989) (same; automatic pistol hidden in mattress in stash house); United States v. Holland, 884 F.2d 354 (8th Cir.) (same; pistol found in briefcase along with drug paraphernalia), cert. denied, — U.S.-, 110 S.Ct. 552, 107 L.Ed.2d 549 (1989); United States" }, { "docid": "328728", "title": "", "text": "kept at a residence which was the principal base of the drug operation. Consequently, it upheld the defendant’s sentence enhancement for possession of an unloaded, single shot .22 pistol. Id. at 188-89; see also United States v. Holland, 884 F.2d 354, 358-59 (8th Cir.) (enhancement justified when two handguns found in defendant’s home where drugs seized), cert. denied, — U.S. —, 110 S.Ct. 552, 107 L.Ed.2d 549 (1989); United States v. McGhee, 882 F.2d 1095, 1096 (6th Cir.1989) (guns concealed in hidden compartments, although not readily accessible to defendant, sufficient to justify enhancement for possession during offense); but see United States v. Rodriguez-Nuez, 919 F.2d 461, 466-467 (7th Cir.1990) (enhancement not justified when distance of several miles separated the firearms found at defendant’s residence and the location of the drugs). In light of the case law interpreting U.S. S.G. § 2Dl.l(b)(l) and Application Note 3, the facts of this case clearly support an upward adjustment in the offense level. Like the firearm in Green, the weapon involved here, a 9mm automatic pistol, is a handgun typically used for personal protection. The fact that the pistol was loaded further distinguishes Garcia’s case from the hypothetical hunting weapon in Application Note 3. Moreover, the pistol was found in the cushions of a living room couch, making it secretly, but readily, accessible to Garcia. Finally, as in Durrive, the fact that the drugs were stored in, and delivered from, Garcia’s house makes it more probable that the gun was connected to the drug offenses. The court’s finding that an enhancement under § 2D1.1(b)(1) was warranted is, therefore, not clearly erroneous. For the foregoing reasons, the decision of the district court in imposing sentence is Affirmed. . Garcia’s \"marketability\" interpretation of § 2D 1.1 is also rendered suspect by evidence in the record which supports the conclusion that Garcia had distributed damp, yet marketable, marijuana from his home the night before the seizure. . While the record does not clearly reflect why the district court did not base its § 2D1.1(b)(1) sentence enhancement on Garcia’s possession of the sawed-off shotgun, the record suggests that" }, { "docid": "5480306", "title": "", "text": "v. Otero, 868 F.2d 1412, 1413-14 (5th Cir.1989); see 18 U.S.C. § 3742(e). We find no merit in Suarez’s claim that the district court clearly erred in its factual findings that Suarez possessed the firearm and that she did so while committing the drug offense. The operable facts more than suffice to support the district court’s ultimate finding of fact that Suarez possessed the firearm. The large caliber automatic pistol and loaded clip were found under the mattress of the bed she was occupying in her own bedroom within the duplex she had been leasing for over four months. That situation is not analogous to an “unloaded hunting rifle in the closet”— the illustration of weapons possession un connected to the offense which the commentary to 2D1.1(b)(1) states does not increase the base offense level. The facts of Suarez’s situation differ significantly from the illustration. Unlike the unloaded rifle in the illustration, Suarez’s pistol, as a firearms expert testified, could have been loaded and fired within IV2 to 2 seconds. Furthermore, Suarez possessed a large caliber automatic pistol, not a hunting rifle, and her gun was under the mattress upon which she lay, not in a remote closet. This court has approved findings of firearms possession in fact situations much more benign than the one in this ease. See, e.g., United States v. Hewin, 877 F.2d 3 (5th Cir.1989) (“dinky little gun” in box in back seat of co-defendant’s car in which defendant arrested while transporting marijuana); United States v. Otero, 868 F.2d 1412 (5th Cir.1989) (handgun and five rounds of ammunition found in defendant’s van parked outside motel room site of cocaine sale and arrest). Other circuits are in accord. See, e.g., United States v. Restrego, 884 F.2d 1294 (9th Cir.1989) (32 caliber automatic pistol discovered between mattress and box springs of defendant’s bed following arrest in another part of house); United States v. Torres, 901 F.2d 205 (2nd Cir.1990) (search of apartment leased to female defendant and shared with male occupant revealed loaded handgun under queen-sized mattress). Suarez can take no comfort from our rejection of firearms possession" }, { "docid": "5480307", "title": "", "text": "caliber automatic pistol, not a hunting rifle, and her gun was under the mattress upon which she lay, not in a remote closet. This court has approved findings of firearms possession in fact situations much more benign than the one in this ease. See, e.g., United States v. Hewin, 877 F.2d 3 (5th Cir.1989) (“dinky little gun” in box in back seat of co-defendant’s car in which defendant arrested while transporting marijuana); United States v. Otero, 868 F.2d 1412 (5th Cir.1989) (handgun and five rounds of ammunition found in defendant’s van parked outside motel room site of cocaine sale and arrest). Other circuits are in accord. See, e.g., United States v. Restrego, 884 F.2d 1294 (9th Cir.1989) (32 caliber automatic pistol discovered between mattress and box springs of defendant’s bed following arrest in another part of house); United States v. Torres, 901 F.2d 205 (2nd Cir.1990) (search of apartment leased to female defendant and shared with male occupant revealed loaded handgun under queen-sized mattress). Suarez can take no comfort from our rejection of firearms possession in United States v. Vasquez, 874 F.2d 250 (5th Cir.1989), wherein a loaded .38 caliber pistol was found in the defendant's bedroom after he had been arrested buying (not selling) drugs several miles from his residence. The district court was not clearly erroneous in finding that Suarez possessed the pistol under her mattress and that “there was a connection between the possession of the firearm and the possession of the cocaine.” Not only was there cocaine in the bedroom in which the gun was possessed at the instant of Suarez’s arrest, but cocaine, cocaine base, marijuana, and drug paraphernalia were also found throughout Suarez’s duplex and in its garden. Unlike a one-time drug sale, Suarez’s crime of possession with intent to distribute involved continuing criminal conduct during which she possessed the pistol at least part of the time. Although the weapon and the crime must be connected temporally and spatially, they need not be connected functionally. Hewin, 877 F.2d at 5. Subject to the issue of scienter discussed below, possession per se “during the commission" } ]

[ { "docid": "642064", "title": "", "text": "economic loss would be $132,752. . A somewhat analogous issue has arisen under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. The ADEA allows for liquidated damages which are compensatory and punitive in nature. Because of this, a district court in Rhode Island declined to allow punitive damages under state law, as well as liquidated damages, reasoning that this would allow a double recovery for a single wrong. As it was not challenged on appeal, the First Circuit mentioned this outcome without comment. Keisling v. Ser-Jobs for Progress, Inc., 19 F.3d 755, 757, n. 1 (1st Cir.1994). See also Bailey v. Container Corp. of America, 660 F.Supp. 1048 (S.D.Ohio 1986) (holding that because liquidated damages under the ADEA are punitive in nature, a jury's award of state punitive damages and ADEA liquidated damages constitutes a double recovery and therefore reducing the total recovery by the amount of the liquidated damages award); but see Wildman v. Lerner Stores Corp., 771 F.2d 605, 616 (1st Cir.1985) (mentioning that plaintiff was awarded liquidated damages under the ADEA as well as double damages and severance pay under Puerto Rico law); Marin Piazza v. Aponte Roque, 668 F.Supp. 63, 69 (D.P.R.1987) (jury verdict awarded double compensatory damages under the state anti-discrimination statute and punitive damages under 42 U.S.C. § 1983). . 42 U.S.C. § 1981a(b)(3) provides: The sum of the amount of compensatory damages awarded under this section ... and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party— (D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar yéar, $300,000. . Plaintiff argues that Title VII allows a total of $300,000 for compensatory damages and another $300,000 for punitive damages for companies the size of American. We disagree, as the clear language of the statute mandates a total of $300,-000 for combined compensatory and punitive damages. . We highlight a fundamental difference between the potential for duplication regarding the unjust discharge award and the alleged duplication of" } ]

[ { "docid": "7489583", "title": "", "text": "3:1. Neither the district court’s action nor the court of appeals’ ensuing holding that damages could not be assessed against the individual defendant supports Pharmacia’s proposal. The court does not embrace Ms. Williams’s gratuitous implication of malice to Pharmacia’s proposal on the method of handling an issue not yet decided within this circuit. Even Ms. Williams concedes that her verdict must be modified, and no controlling precedent instructs how that should be done. Pharmacia has tendered one reasonable approach, but has not persuaded the court that its formula is the most reasonable. The availability of compensatory damages apart from back and front pay demonstrates Congressional recognition that discriminatory employment practices inflict injuries beyond mere loss of a paycheck or reduction in wages and benefits, and Congressional intent that victims of employment discrimination should be compensated for those non-pecuniary injuries. The availability of punitive damages discloses Congressional intent that juries be permitted to punish particularly egregious instances of discrimination, but the “cap” on damages bespeaks a coincident intent to limit that punishment when, as here, substantial non-wage injuries have been proven. Compensation is the primary purpose of the new remedies provided by the 1991 Act, and the jury’s award should be applied first for that purpose. The court will cap the compensatory damages pursuant to the statutory limit, leaving no room for punitive damages. See also Hogan v. Bangor and Aroostook R.R. Co., 61 F.3d 1034, 1037 (1st Cir.1995) (reaching the same result, but doing so to obviate the need to consider the propriety of the punitive damage award). Accordingly, the court reduces the compensatory award from $500,000.00 to $300,-000.00, and vacates the punitive damages award. The court does so without prejudice to Ms. Williams’s right to seek full or partial reinstatement of the punitive damages award in the event the compensatory damages award is later reduced, for any reason, to a sum below $300,000.00. 2. Back Pay Ms. Williams seeks an award of back pay, and Pharmacia’s post-trial brief does not challenge her right to such an award. While the two testifying economists disagreed over inferences to be drawn from" }, { "docid": "16479736", "title": "", "text": "not live by the systems he and Nafzger had in place, they could leave. In addition, the court allowed in evidence concerning LCFS' response to a dispute between Kingsboro and Ms. Jonasson arising over Black History month. . Under 42 U.S.C. § 1981a(b)(3)(c), the sum of compensatory and punitive damages that may be awarded shall not exceed $200,000 if the employer, like LCFS, has more than 200 employees, but fewer than 501 employees. . In Hogan v. Bangor & Aroostook R.R., 61 F.3d 1034, 1037 (1st Cir.1995), the jury awarded the plaintiff $200,000 each in compensatory and punitive damages. The statutory cap provided that the two together could not exceed $200,000. The district court reduced pro rata the compensatory and punitive damage awards to $100,000 each. The court of appeals modified the district court’s judgment; it reinstated the full $200,000 compensatory award and vacated the punitive damages award. The court's opinion offers no extensive discussion of its reason for such a course, but a reading of the authority which it cites makes most probable that it took such a course in order to avoid the issues involving punitive damages. Cf. Williams v. Pharmacia Opthalmics, Inc., 926 F.Supp. 791, 794 (N.D.Ind.1996) (also reading Hogan as based on a desire to avoid the punitive damages issue)." }, { "docid": "8215307", "title": "", "text": "of punitive to compensatory damages in this case is between 3:1 and 4:1. There are certainly circumstances when a 4:1 ratio would be appropriate. See State Farm, 538 U.S. at 425, 123 S.Ct. 1513. (“In Haslip, in upholding a punitive damage award, we concluded that an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety. We cited that 4-to-l ratio again in Gore.”) (internal citations omitted). However, in State Farm the Supreme Court also noted that while “low awards of compensatory-damages may properly support a higher ratio than high compensatory awards ... The converse is also true ... When compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.” Id. Here, the Court believes the ratio in this case is excessive because Thomas was awarded a very substantial amount in compensatory damages, making a punitive award equal to the compensatory damage award more appropriate. Additionally, the jury’s award of punitive damages is not in line with the federal statutory caps on punitive damages. See 42 U.S.C.1981a (b)(3)(A) (imposing a $50,000 cap on a respondent who has fewer than 101 employees “in each of 20 or more calendar weeks in the current or preceding calendar year,” a $100,000 cap on a respondent with 100 to 20 employees, a $200,000 cap on a respondent with 200 to 500 employees, and a $300,000 cap on a respondent with over 500 employees). Under the NYCHRL, unlike Title VII, there is no cap on punitive damage awards. See Zimmerman v. Assocs. First Capital Corp., 251 F.3d 376, 384 (2d Cir.2001). However, the federal cap nonetheless provides guidance on what is considered an appropriate civil penalty for comparable misconduct. See Lamberson v. Six West Retail Acquisition, Inc., No. 98 cv 8053, 2002 WL 59424, at *7 (S.D.N.Y. Jan.16, 2002)(reducing $400,000 punitive damage award in a retaliation ease to $30,000). Most significantly, the jury’s award is not in line with the punitive damages awarded in similar cases by this Court or other" }, { "docid": "6983087", "title": "", "text": "Sagall, BAR reinstated Hogan to his job as trackman. In the period that Hogan was kept out of work despite his doctors’ opinions that he was fit, Hogan and his family were forced to live on a fraction of his former income as family breadwinner. Dr. Sagall’s repeated statements to him that he was disabled and the disability was probably permanent exacerbated Hogan’s depressed state. The jury found in Hogan’s favor under the ADA and awarded him $200,000 each in punitive and in compensatory damages. The district court then reduced Hogan’s award to $200,000 ($100,000 compensatory and $100,-000 punitive) pursuant to the statutory cap imposed by 42 U.S.C. § 1981a(b)(3). In addition, Hogan was awarded $70,684.29 in back pay. As an alternative recovery under the MHRA, the district court awarded Hogan the same back pay award of $70,684.29 plus $5,000 in civil penal damages. Hoping to retain the $400,000 award, Hogan argues, based solely on an improbable reading of the statute, that 42 U.S.C. § 1981a(b)(3) imposes a cap of $200,000 on each type of damage award, and not on the sum of the two. The language of 42 U.S.C. § 1981a(b)(3) nrovides: The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpe-cuniary losses, and the amount of punitive damages awarded under this section, shall not exceed ... $200,000. The district court correctly read the provision as “[t]he sum of the amount of compensatory damages ... and the amount of punitive damages ... shall not exceed ... $200,-000.” The only other court to have considered the issue thus far has reached the same conclusion. See U.S. Equal Employment Opportunity Commission v. AIC Security Investigations, Ltd,., 823 F.Supp. 571, 576 (N.D.Ill.1993), rev’d in part on other grounds, 55 F.3d 1276 (7th Cir.1995). The statute is clear on its face that the sum of compensatory damages (including its various components) and punitive damages shall not exceed $200,000. “The task of statutory interpretation begins with the language of the statute, and statutory language" }, { "docid": "14934502", "title": "", "text": "especially since Kerr tried the case to the jury on the theory that Carrasquillo’s interest in her sex life was the impetus for both her gender discrimination and privacy claims. Thus, without presuming that the jury relied on any evidence of conduct antedating July 15,1991, which would have violated the unchallenged jury instructions, Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 953 (1st Cir.1995), we cannot say that the evidence, viewed in the light most favorable to the verdict, was plainly insufficient to enable a rational jury to find that Carrasquillo repeatedly displayed an intrusive preoccupation with Kerr’s personal and private life, in violation of commonwealth law. In all events, we can discern no “clear miscarriage of justice.” See Poulin, 18 F.3d at 982. C. Damages Appellants also challenge the damages awarded by the jury. We find merit only in their challenge to the punitive damages awarded on the federal claims. 1. Allocation of Damages The district court attributed the total compensatory damages award to the commonwealth claims. Appellants complain that its ruling unfairly maximized Kerr’s recoveries by enabling her to retain, as punitive damages, the maximum $300,000 in total damages permitted under federal law for intentional employment discrimination. See 42 U.S.C. § 1981a(b)(3)(D); see also special verdict 10B. We think the district court permissibly concluded that all damages awarded under special verdict 9 represented compensation for injuries sustained in connection with the commonwealth claims. Cf. Hogan v. Bangor & Aroostook R.R., 61 F.3d 1034, 1037 (1st Cir.1995) (preserving compensatory damages award by applying full damages cap to punitive damages award). The jury was instructed that only the compensatory damages awarded on the commonwealth claims could be doubled. Therefore, the most plausible explanation consistent with the special verdicts is that the jury awarded no compensatory damages on the federal claims under special verdict 9. And since the $300,000 federal damages cap does not apply to the Puerto Rico employment discrimination claims, cf. 42 U.S.C. § 2000e-7 (Title VII does not relieve defendant from liability under state law), the compensatory damages award on the commonwealth claims stands. 2. Punitive Damages Although" }, { "docid": "23357816", "title": "", "text": "some courts have ruled that judicial notice of some SEC filings is appropriate, see Southmark Prime Plus, L.P. v. Falzone, 776 F.Supp. 888, 898 (D.Del.1991) (Mowing Kramer v. Time Warner Inc., 937 F.2d 767 (2d Cir.1991)), we believe that the fact in question here was not capable of accurate and ready determination by resort to the 10-K. This is not to say that the form could not have been creatively used by Hennessy for cross-examination purposes, but on the issue of judicial notice, we agree with the trial court. Based on the evidence presented in the case, the correct cap figure was $100,000. But Hennessy can’t go to the bank with this sum just yet as another issue remains. There are cases, of course, where courts have reduced a jury’s award of punitive damages to the statutory maximum or cap provided in 42 U.S.C. § 1981a(b). EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276 (7th Cir.1995), cited in our footnote to this opinion, is such a case. In AIC we upheld a district court’s reduction of a punitive damages award under the ADA against an employer from $500,000 to $150,000 to fit a statutory cap of $200,000 in compensatory and punitive damages where the jury also awarded $50,000 in compensatory damages. See also Selgas v. American Airlines, Inc., 858 F.Supp. 316, 326 (D.P.R.1994) (court reduced jury’s award of $350,000 in punitive damages under Title VII to $300,000, the maximum award permitted against an employer with more than 500 employees; Emmel v. Coca-Cola Bottling Co. of Chicago, Inc., 904 F.Supp. 723, 739-41 (N.D.Ill.1995) (court upheld a punitive damage reduction from $500,000 to $300,000, the maximum award permitted against an employer with more than 500 employees); Hogan v. Bangor and Aroostook R.R., 61 F.3d 1034, 1037 (1st Cir.1995) (jury awarded $400,000 total in compensatory and punitive damages against employer; district court reduced award to $200,000 total — $100,000 each for compensatory and punitive damages — pursuant to § 1981a(b)’s cap; court of appeals reinstated jury’s award of $200,000 in compensatory damages and vacated the district court’s award of $100,000 in punitive" }, { "docid": "22094697", "title": "", "text": "nine-day trial, a jury found that AIC and Vrdolyak had violated the ADA. The jury awarded $22,000 in back pay, $50,000 in compensatory damages, $250,000 in punitive damages against AIC, and $250,000 in punitive damages against Vrdolyak. Post-trial motions hammered out the final disposition of the case. The district court granted injunctive relief against AIC, ordering a variety of measures to prevent future discrimination. The district court ordered AIC to pay the $22,000 back pay award, plus interest, and the court further ruled that AIC and Vrdolyak were jointly and severally liable for the $50,000 in compensatory damages. As to the punitive damages, the court noted that 42 U.S.C. § 1981a(b) caps at $200,000 the total amount of compensatory and punitive damages that can be awarded in favor of one plaintiff against a defendant of AIC’s size, although the statute forbids the court to inform the jury of that limit. In addition, the district court found that $250,000 per defendant in punitive damages was excessive. For these two reasons, the district court reduced the total award of punitive damages to $75,-000 each for Vrdolyak and AIC, thus placing the total award at the maximum amount allowable, $200,000. The district court made AIC and Vrdolyak severally liable for their shares of the punitive damages. II. Analysis A. Vrdolyak’s Liability As an Individual Vrdolyak argues that, as an individual, she cannot be sued under the ADA. Vrdolyak made this same argument to the district court, which rejected it, siding instead with the EEOC’s and Wessel’s opposite interpretation of the statute. However, we join analogous decisions of our sister Circuits in holding that individuals who do not independently meet the ADA’s definition of “employer” cannot be held liable under the ADA. This is a pure question of law; we review the district court’s disposition of it de novo. Pilditch v. Board of Educ., 3 F.3d 1113, 1115 (7th Cir.1993). The ADA forbids discrimination by any “covered entity,” defined as “an employer, employment agency, labor organization, or joint labor-management committee.” 42 U.S.C. §§ 12112(a); 12111(2). “Employer” is “a person engaged in an industry affecting" }, { "docid": "1417396", "title": "", "text": "practice, “few awards exceeding a single-digit ratio between punitive and compensatory damages ... will satisfy due process.” State Farm, 538 U.S. at 424-25, 123 S.Ct. 1513. This approximation is not definitive because “courts must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered.” Id. at 426, 123 S.Ct. 1513. The jury awarded the EEOC $100,000 in compensatory damages, $500,000 in punitive damages, and $115,000 in back pay. The magistrate judge later remitted the punitive damages to $200,000. This is a two-to-one ratio between punitive and compensatory damages, and if back pay is added to the compensatory damages, the value of the punitive damages is actually less than the value of the back pay and compensatory damages by $15,000. We conclude that these ratios are well within the range of constitutionally acceptable values. The third guidepost requires us to compare the punitive damages in this case to the “civil or criminal penalties that could be imposed for comparable misconduct.” Gore, 517 U.S. at 583, 116 S.Ct. 1589. This allows courts to show “substantial deference to legislative judgments concerning appropriate sanctions for the conduct at issue.” Id. (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 301, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989) (O’Connor, J., concurring in part and dissenting in part)) (internal quotation marks omitted). Neither the EEOC nor AutoZone directs us to any comparable civil or criminal fines, but they are instead content to discuss case law that they think is relevant. Thankfully, we need not look far to determine the legislature’s judgment concerning the appropriate level of damages in this case: Congress has already defined the statutory cap for the sum of punitive and compensatory damages at $300,000 for this case. § 1981a(b)(3)(D). We recognize that this statutory cap suggests that an award of damages at the capped maximum is not outlandish. See Lust v. Sealy, Inc., 383 F.3d 580, 590-91 (7th Cir.2004); see also Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1355 (7th Cir.1995) (listing" }, { "docid": "1417379", "title": "", "text": "613-14, 619-21 (7th Cir.2005) (upholding an award of $175,000 in compensatory damages for an employee’s emotional distress after her employer failed to promote her); Harvey v. Office of Banks & Real Estate, 377 F.3d 698, 713-15 (7th Cir.2004) (upholding an award of $100,000 in compensatory damages for an employee’s “mental and physical ailments,” for which a “jury could have reasonably concluded that awards in the range of $50,000 to $150,000 were necessary”); Lampley, 340 F.3d at 484-85 (upholding an award of $75,000 in compensatory damages when the employee’s improper termination had lingering negative effects on the employee’s mental state). In fact, Shepherd’s case is more extreme than some of these cases because Shepherd experienced near-daily pain that left him incapable of performing common activities, such as putting on his clothes and taking a shower. We have recognized that cases that include even the slightest “physical element” are often associated with more substantial compensatory-damages awards. See Thompson v. Mem’l Hosp. of Carbondale, 625 F.3d 394, 410 (7th Cir. 2010) (awarding $250,000 in compensatory damages because the employee had been concerned about “his safety and that of his patients”); see also Naeem v. McKesson Drug Co., 444 F.3d 593, 598-600, 611-12 (7th Cir.2006) (upholding an award of $240,000 in damages for pain and suffering under Illinois state law when the plaintiff suffered physical symptoms of anxiety during a complicated pregnancy); Farfaras v. Citizens Bank & Trust of Chi., 433 F.3d 558, 560-64, 566-67 (7th Cir.2006) (upholding an award of $200,000 in compensatory damages because the employee had been repeatedly and inappropriately touched and intimidated, among other forms of sexual harassment). We conclude that all three factors used to determine whether compensatory damages are excessive weigh in favor of the EEOC. The magistrate judge therefore did not abuse his discretion when he upheld the award of $100,000 in compensatory damages for Shepherd’s pain and suffering. 2. Punitive Damages The jury awarded $500,000 in punitive damages against AutoZone, but the magistrate judge reduced the punitive damages to $200,000 to comply with a statutory cap. See 42 U.S.C. § 1981a(b)(3)(D). AutoZone first asks us to" }, { "docid": "18059569", "title": "", "text": "and the vague reference to \"[i]nvesligations w/seck for more records” for 4.9 hours on April 18. In addition, the Court finds that the plaintiff’s motion for Rule 11 sanctions was baseless, and therefore will not permit recovery for related attorney time (approximately 9.2 hours). Nor will the Court permit recovery for the .6 hours Mr. Ruffin spent on the non-attorney task of serving subpoenas on witnesses on April 2. In total, Mr. Ruffin shall not be compensated for 56.2 hours of claimed attorney time. . The coupon issue yield equivalent of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of judgment (March 26, 1997) was 6.00%. . The plaintiff argues that the statutory cap applies to the compensatory damages award and the punitive damages award separately. Thus, assuming Milvets employed over 100 people, the plaintiff argues that his compensatory damage award of $50,000 fits well under the $100,000 cap. Additionally, his punitive damages award of $150,000 should be reduced only by $50,000. The Court rejects this reading of § 1981a, because the damages cap applies to the combined sum of compensatory and punitive damages. See Hogan v. Bangor and Aroostook R.R. Co., 61 F.3d 1034, 1037 (1st Cir.1995) (explicitly rejecting argument that statutory cap applies separately to compensatory and punitive damages awards). . Evidence sufficient to establish an intentional violation of Title VII is sufficient to permit a jury to award punitive damages. Kolstad v. Am. Dental Ass'n, 108 F.3d 1431, 1438 (D.C.Cir.1997). Here, a reasonable jury could find that Milvets intentionally retaliated against the plaintiff because he had \"opposed [a] practice made an unlawful employment practice” by Title VII. 42 U.S.C. § 2000e-3(a). The jury heard testimony that (1) the plaintiff's supervisor, Jacqueline McCullough, had a romantic relationship with the plaintiff's co-worker and friend, Richard Brown, and that McCullough was aware of Brown's friendship with the plaintiff; (2) McCullough attempted to remove Brown's supervisory authority and reduce his pay shortly after Brown had informed McCullough that he wished to end the relationship; (3) McCullough confronted" }, { "docid": "22890827", "title": "", "text": "on all of the issues are AFFIRMED. . November 21, 1991 is the date on which the Civil Rights Act of 1991, 42 U.S.C. § 1981a, et seq., became effective. The 1991 Act amended Title VII to provide for jury trials on sex discrimination and retaliation claims. . The December 11, 1991 and October 27, 1992 Complaints were consolidated. . It is undisputed that DOJ employs more than 500 employees and that Hudson was awarded compensatory damages for intentional sex discrimination, retaliation, and constructive discharge under Title VII. . As Defendants point out, this result is consistent with the uniform precedent that has construed § 1981a as establishing a single cap for all types of damages awarded, compensatory and punitive alike. B.E.O.C. v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1281 (7th Cir.1995); Hennessy v. Penrii Datacomm Networks, Inc., 69 F.3d 1344, 1355 (7th Cir.1995); Hogan v. Bangor and Aroostook R.R., 61 F.3d 1034, 1037 (1st Cir.1995); Selgas v. American Airlines, Inc., 858 F.Supp. 316, 326 (D.P.R.1994), affirmed in part, vacated in part, 69 F.3d 1205 (1st Cir.1995); Emmel v. Coca-Cola Bottling Co. of Chicago, Inc., 904 F.Supp. 723, 739-41 (N.D.Ill.1995), affirmed, 95 F.3d 627 (7th Cir.1996); Solomon v. Godwin and Carlton, P.C., 898 F.Supp. 415, 416 (N.D.Tex.1995). . The Eleventh Circuit has since decided this appeal, but the Court did not address the issue of damages caps under § 1981a. Reynolds v. CSX Transportation, Inc., 115 F.3d 860 (1997). . See, e.g., Shore v. Federal Express Corp., supra; Suggs v. ServiceMaster Educ. Food Management, 72 F.3d 1228 (6th Cir.1996). . To the extent that Volz was \"spreading rumors” based on information in Dedrick's file, the Court concludes that this allegation still does not trigger the Privacy Act since Dedrick's file is not covered by the Act, as discussed, infra. . Hudson argues that because the jury found discrimination and retaliation post-November 20, 1991, this somehow binds the District Court's fact-finding and legal conclusions regarding the Privacy Act. This argument has no legal significance because it was the District Court, not the jury, that was the fact-finder on the Privacy" }, { "docid": "14724861", "title": "", "text": "limited their particularized job prospects. The ADA explicitly contemplates that the “disability” determination is to be made by the factfinder on an individualized, case-by-case basis. See 42 U.S.C. § 12102(2)(A) (defining “disability” as “a physical ... impairment that substantially limits one or more of the major life activities of such individual ”) (emphasis added). On appeal from a judgment entered pursuant to Rule 50(b), we do not consider which party put forth the more convincing case, but whether the party with the burden of proof adduced enough evidence to enable a rational jury to return a verdict in her favor. As Quint met the required evidentiary threshold, we must affirm the liability verdict. 3. Damages Staley next contends that the compensatory and punitive damages awards were excessive. The jury awarded Quint $300,000 in compensatory damages, see McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 506-07 (1st Cir.1996) (amended ADA makes emotional harm compensa-ble), and, based on Staley’s annual net income of $65-85 million, $420,000 in exemplary damages. The district court reduced the combined award to $300,000 pursuant to the statutory cap in 42 U.S.C. § 1981a(b)(3)(D). Staley argues that the jury rationally could not have awarded Quint $300,000 in compensatory damages since she established no serious emotional injuries stemming from her discharge. Be that as it may, since we find the punitive damages award itself proper, and it alone exceeded the $300,000 statutory cap, there is no need to revisit the compensatory-damages issue. See Hogan v. Bangor and Aroostook R.R. Co., 61 F.3d 1034, 1037 (1st Cir.1995). An ADA plaintiff may recover punitive damages provided she establishes, inter alia, that the defendant engaged in a discriminatory practice “with reckless indifference to the [plaintiffs] federally 'protected rights.” 42 U.S.C. § 1981a(b)(l)(emphasis added). Staley contends that the only evidence of reckless indifference was its short notification of the March 7, 1994 appointment with Dr. Blum and of Quint’s right to require Staley to compensate her doctor for attending the appointment. Staley argues that since these rights arise under Maine law, see Me.Rev.Stat. Ann. tit. 39-A, § 207, supra note 1, rather than" }, { "docid": "14934503", "title": "", "text": "Kerr’s recoveries by enabling her to retain, as punitive damages, the maximum $300,000 in total damages permitted under federal law for intentional employment discrimination. See 42 U.S.C. § 1981a(b)(3)(D); see also special verdict 10B. We think the district court permissibly concluded that all damages awarded under special verdict 9 represented compensation for injuries sustained in connection with the commonwealth claims. Cf. Hogan v. Bangor & Aroostook R.R., 61 F.3d 1034, 1037 (1st Cir.1995) (preserving compensatory damages award by applying full damages cap to punitive damages award). The jury was instructed that only the compensatory damages awarded on the commonwealth claims could be doubled. Therefore, the most plausible explanation consistent with the special verdicts is that the jury awarded no compensatory damages on the federal claims under special verdict 9. And since the $300,000 federal damages cap does not apply to the Puerto Rico employment discrimination claims, cf. 42 U.S.C. § 2000e-7 (Title VII does not relieve defendant from liability under state law), the compensatory damages award on the commonwealth claims stands. 2. Punitive Damages Although we conclude that the district court supportably ascribed the entire compensatory damages award to the commonwealth claims, its ruling casts doubt upon any punitive damages award on the federal claims. As appellants point out, generally a claimant may not recover punitive damages without establishing liability for either compensatory or nominal damages. See Cooper Distrib. Co., Inc. v. Amana Refrigeration, Inc., 63 F.3d 262, 281-83 (3d Cir.1995); Restatement (Second) Of Torts § 908 cmts. b, c (1979). Absent a compensatory damages award, we inquire whether Kerr was entitled to nominal damages on her federal claims even though she did not request such relief. The Eighth Circuit considered a similar question in an employment discrimination action brought under 42 U.S.C. § 1981. See Hicks v. Brown Group Inc., 902 F.2d 630, 652-54 (8th Cir.1990); vacated, 499 U.S. 914, 111 S.Ct. 1299, 113 L.Ed.2d 234 (1991) (relying on case subsequently undermined by amendment to statute). There the jury found that race formed part of the reason for firing Hicks, but that the same employment decision would have been" }, { "docid": "18059561", "title": "", "text": "in a single-plaintiff employment discrimination case); Castle, 872 F.Supp. at 1068-69 (awarding over $185,000 in attorney’s fees). The plaintiff also shall be entitled to post-judgment interest on the attorney’s fees at a rate of 6.00%, in accordance with 28 U.S.C. § 1961. See Shaw v. Library of Congress, 747 F.2d 1469, 1475 (1984) (interest allowed on Title VII attorney’s fees award), rev’d on other grounds, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986). The interest shall be computed daily from the date judgment in this case was entered, April 22, 1997, until the date the judgment is paid, and shall be compounded annually. See 28 U.S.C. § 1961(b). D. The $200,000 Jury Verdict Shall Be Reduced to $50.000. The jury awarded the plaintiff $50,-000 in compensatory damages and $150,000 in punitive damages. Under the Civil Rights Act of 1991, if Milvets employed between 15 and 100 employees “in each of 20 or more calendar weeks” in 1995 (the year the plaintiff suffered retaliation) or 1994 (the preceding year), then the maximum combined sum of compensatory and punitive damages that the plaintiff can recover cannot exceed $50,-000, and the jury’s verdict would have to be reduced by $150,000. 42 U.S.C. § 1981a(b)(3)(A). If Milvets employed between 101 and 200 employees, the plaintiff is limited to a sum of $100,000, and the verdict would have to be cut by $100,000. Id. at § 1981a(b)(3)(B). The Special Master has determined that Milvets employed less than 101 employees in 1994 and 1995. See Special Master’s Final Report, at p. 3 (October 28, 1997). Because the plaintiff has not shown that the Special Master’s finding is clearly erroneous, the Court shall adopt his finding of fact and reduce the $200,000 damages award to $50,-000. Neither party has proposed a method by which the Court should reduce the damages award. It would be easiest for the Court simply to vacate the jury’s $150,000 punitive damages award, thereby leaving the $50,000 compensatory damages award, which satisfies the damages cap. This method, however, would in some sense nullify the jury’s finding that the defendant’s conduct warranted" }, { "docid": "2333594", "title": "", "text": "the jury’s and the judge’s consideration of an award of punitive damages, as follows: [Section] 1981a envisions that the level of punitive damages to be awarded will initially be set by the jury, and that the. jury will make that determination without being influenced by the statutory caps. See 42 U.S.C. § 1981a. The jury is to be guided by the same principles that have traditionally guided such determinations: the amount necessary to punish the defendant for its conduct and to deter the defendant and other employers from engaging in such activity in the future. See, e.g., Rowlett, 832 F.2d at 204. Then, if the sum of the compensatory and punitive damages awarded by the jury exceeds the relevant cap, the district court reduces the award to ensure that it conforms with subsection (b)(3); that is, that it “[does] not exceed” the relevant cap for an employer of the defendant’s size. See, e.g., Hogan v. Bangor & Aroostook R.R. Co., 61 F.3d 1034, 1037 (1st Cir.1995). Nothing in the language of the statute suggests that the cap on damages is intended to diminish the jury’s role in assessing punitive damages or to alter the standard for judicial review of such awards. The legislative history of the provision confirms that it is not meant to exert upward or downward pressure on the size of jury awards. .Rather, the purpose of the cap is to deter frivolous lawsuits and protect employers from financial ruin as a result of unusually large awards. The statutory limitation is not an endpoint of a scale according to which judges might récalibrate jury awards. Luciano v. Olsten Corp., 110 F.3d 210, 221 (2d Cir.1997) (internal citations omitted). In Luciano, the court affirmed the district court’s reduction of the jury’s punitive damages award of $5,000,002.00 in a Title VII employment discrimination case to the statutory cap sum of $300,000.00, notwithstanding the employer’s contention that the court was required to reduce the jury’s award of damages to an amount below the statutory cap for an employer that size because the cap amount should be reserved only for the most" }, { "docid": "22890826", "title": "", "text": "of Andrews by 25% to account for duplication of effort in trial, trial preparation, and the pre-trial conference. Hudson argues that this reduction was improper because the DOJ was represented in the courtroom by four lawyers, while Andrews was Shapiro’s only assistant at trial. Again, this argument is irrelevant to the District Court’s determination that some of Andrews’ time was duplicative. It is well-established that “[t]he lower court’s determination that an indefinite number of hours claimed by Plaintiffs are excessive or duplicative is a finding of fact, which is to be affirmed unless clearly erroneous.” Wayne, supra, 36 F.3d at 532. Therefore, the district court may take such duplication into account by making a simple across-the-board reduction by a certain percentage. See Coulter, supra, 805 F.2d at 152. Hudson has offered the Court no relevant reason why the District Court’s findings and conclusions here should be disturbed, and therefore, the Court finds that the District Court must be affirmed. V. CONCLUSION For all of the reasons stated above in this Opinion, the District Court’s decisions on all of the issues are AFFIRMED. . November 21, 1991 is the date on which the Civil Rights Act of 1991, 42 U.S.C. § 1981a, et seq., became effective. The 1991 Act amended Title VII to provide for jury trials on sex discrimination and retaliation claims. . The December 11, 1991 and October 27, 1992 Complaints were consolidated. . It is undisputed that DOJ employs more than 500 employees and that Hudson was awarded compensatory damages for intentional sex discrimination, retaliation, and constructive discharge under Title VII. . As Defendants point out, this result is consistent with the uniform precedent that has construed § 1981a as establishing a single cap for all types of damages awarded, compensatory and punitive alike. B.E.O.C. v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1281 (7th Cir.1995); Hennessy v. Penrii Datacomm Networks, Inc., 69 F.3d 1344, 1355 (7th Cir.1995); Hogan v. Bangor and Aroostook R.R., 61 F.3d 1034, 1037 (1st Cir.1995); Selgas v. American Airlines, Inc., 858 F.Supp. 316, 326 (D.P.R.1994), affirmed in part, vacated in part, 69 F.3d" }, { "docid": "2333593", "title": "", "text": "with reckless or callous indifference in gross disregard of employee, award was high and shocking in view of totality of the evidence); Fernandez v. North Shore Orthopedic Surgery & Sports Medicine, P.C., 79 F.Supp.2d 197 (E.D.N.Y.2000) (punitive damages award of $100,000.00 in Title VII case was excessive, and would be reduced to $50,000.00, considering employer’s low degree of reprehensibility; there was no evidence that employer engaged in repeated instances of misconduct with respect to other employ ees); Rivera v. Baccarat, Inc., 10 F.Supp.2d 318 (S.D.N.Y.1998) (jury’s award of $375,000.00 in punitive damages found excessive where there was no evidence that the employer engaged in a pattern of discrimination over time); Iannone v. Frederic R. Harris, Inc., 941 F.Supp. 403 (S.D.N.Y.1996) (in awarding punitive damages, repeated misconduct is more reprehensible than individual instance of malfeasance; thus, larger exemplary damage award may be imposed upon employer who has committed multiple violations of Title VII or whose actions are part of an overall pattern of discrimination). The Second Circuit has addressed the effect of the statutory cap on the jury’s and the judge’s consideration of an award of punitive damages, as follows: [Section] 1981a envisions that the level of punitive damages to be awarded will initially be set by the jury, and that the. jury will make that determination without being influenced by the statutory caps. See 42 U.S.C. § 1981a. The jury is to be guided by the same principles that have traditionally guided such determinations: the amount necessary to punish the defendant for its conduct and to deter the defendant and other employers from engaging in such activity in the future. See, e.g., Rowlett, 832 F.2d at 204. Then, if the sum of the compensatory and punitive damages awarded by the jury exceeds the relevant cap, the district court reduces the award to ensure that it conforms with subsection (b)(3); that is, that it “[does] not exceed” the relevant cap for an employer of the defendant’s size. See, e.g., Hogan v. Bangor & Aroostook R.R. Co., 61 F.3d 1034, 1037 (1st Cir.1995). Nothing in the language of the statute suggests that" }, { "docid": "6983088", "title": "", "text": "damage award, and not on the sum of the two. The language of 42 U.S.C. § 1981a(b)(3) nrovides: The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpe-cuniary losses, and the amount of punitive damages awarded under this section, shall not exceed ... $200,000. The district court correctly read the provision as “[t]he sum of the amount of compensatory damages ... and the amount of punitive damages ... shall not exceed ... $200,-000.” The only other court to have considered the issue thus far has reached the same conclusion. See U.S. Equal Employment Opportunity Commission v. AIC Security Investigations, Ltd,., 823 F.Supp. 571, 576 (N.D.Ill.1993), rev’d in part on other grounds, 55 F.3d 1276 (7th Cir.1995). The statute is clear on its face that the sum of compensatory damages (including its various components) and punitive damages shall not exceed $200,000. “The task of statutory interpretation begins with the language of the statute, and statutory language must be accorded its ordinary meaning.” Gately v. Commonwealth of Massachusetts, 2 F.3d 1221, 1228 (1st Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1832, 128 L.Ed.2d 461 (1994). “[WJhen a statute speaks with clarity to an issue judicial inquiry into the statute’s meaning, in all but the most extraordinary circumstance, is finished.” Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475, 112 S.Ct. 2589, 2594, 120 L.Ed.2d 379 (1992). The reduction of the jury award from $200,000 to $100,000 on each type of damage award was done by the district court simply to accommodate the cap. The original jury award of $200,000 for compensatory damages alone would also satisfy the cap. Exercising our authority under 28 U.S.C. § 2106, see United States v. Garafano, 61 F.3d 113, 116 (1st Cir.1995), we reinstate the jury’s award of $200,000 in compensatory damages, for which there is sufficient evidence as described below, and vacate the district court’s award of $100,000 in punitive damages, thus obviating the need to reach the question of punitive damages. BAR" }, { "docid": "23357817", "title": "", "text": "reduction of a punitive damages award under the ADA against an employer from $500,000 to $150,000 to fit a statutory cap of $200,000 in compensatory and punitive damages where the jury also awarded $50,000 in compensatory damages. See also Selgas v. American Airlines, Inc., 858 F.Supp. 316, 326 (D.P.R.1994) (court reduced jury’s award of $350,000 in punitive damages under Title VII to $300,000, the maximum award permitted against an employer with more than 500 employees; Emmel v. Coca-Cola Bottling Co. of Chicago, Inc., 904 F.Supp. 723, 739-41 (N.D.Ill.1995) (court upheld a punitive damage reduction from $500,000 to $300,000, the maximum award permitted against an employer with more than 500 employees); Hogan v. Bangor and Aroostook R.R., 61 F.3d 1034, 1037 (1st Cir.1995) (jury awarded $400,000 total in compensatory and punitive damages against employer; district court reduced award to $200,000 total — $100,000 each for compensatory and punitive damages — pursuant to § 1981a(b)’s cap; court of appeals reinstated jury’s award of $200,000 in compensatory damages and vacated the district court’s award of $100,000 in punitive damages to keep total award at the cap). We have found no cases, however, where a court has determined that the statutory cap is too great an award and therefore reduced the award of compensatory and punitive damages to a figure below the statutory cap. But we believe this to be the kind of case where that sort of a reduction is appropriate. When Congress permitted, for the first time, awards of compensatory and punitive damages in Title VII cases, it was concerned with keeping those damages under reasonable control. It did not want Title VII awards, especially of punitive damages, to be excessive as they can be in other areas of the law. We note, at this moment, that an issue regarding the possible excessiveness of a punitive damage award is presently before the Supreme Court in BMW of North America Inc. v. Gore, 646 So.2d 619 (1994), cert. granted, — U.S. —, 115 S.Ct. 932, 130 L.Ed.2d 879 (1995). In that case, an Alabama jury awarded a physician $2 million against the German" }, { "docid": "16479735", "title": "", "text": "1589, 1598-99, 134 L.Ed.2d 809 (1996), the Court carefully rehearsed the evidence of record and concluded that the jury’s determination that punitive damages be awarded was clearly warranted. We cannot say that, under the circumstances presented here, the district court erred in taking care that the judgment it entered reflected, as closely as permitted by the statute, the finding of the jury. Conclusion Upon study of the submissions of counsel and careful examination of the record, we believe that the district court committed no reversible error in the conduct of the trial and related proceedings in the district court. Accordingly, the judgment of the district court must be affirmed. Affirmed. . See Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). . The district court admitted evidence of employees' complaints with kitchen ventilation, rodents in the kitchen, and the tidiness of the dining room. The judge also allowed in evidence regarding a meeting between Svebakken and the employees. In that meeting, Svebakken informed the employees that, if they could not live by the systems he and Nafzger had in place, they could leave. In addition, the court allowed in evidence concerning LCFS' response to a dispute between Kingsboro and Ms. Jonasson arising over Black History month. . Under 42 U.S.C. § 1981a(b)(3)(c), the sum of compensatory and punitive damages that may be awarded shall not exceed $200,000 if the employer, like LCFS, has more than 200 employees, but fewer than 501 employees. . In Hogan v. Bangor & Aroostook R.R., 61 F.3d 1034, 1037 (1st Cir.1995), the jury awarded the plaintiff $200,000 each in compensatory and punitive damages. The statutory cap provided that the two together could not exceed $200,000. The district court reduced pro rata the compensatory and punitive damage awards to $100,000 each. The court of appeals modified the district court’s judgment; it reinstated the full $200,000 compensatory award and vacated the punitive damages award. The court's opinion offers no extensive discussion of its reason for such a course, but a reading of the authority which it cites makes most probable that" } ]

[ { "docid": "23450053", "title": "", "text": "business with one another. Thus, as said in United States v. Columbia Steel Co., 334 U.S. 495, 522-523, 68 S.Ct. 1107, 1121, 1122, 92 L.Ed. 1533 (1948) “in discussing the charge * * * [that a close working arrangement between the parent and the subsidiary corporation was evidence of an illegal combination] we said that the fact that the conspirators were integrated did not insulate them from the act, not that corporate integration violated the act. * * * When other elements of Sherman Act violations are present, the fact of corporate relationship is material and can be considered in the determination of whether restraint or attempt to restrain exists.” In its complaint plaintiff alleged •a price fixing conspiracy, but offered no proof that defendants’ prices were unreasonable or higher than those of other producers. On appeal plaintiff urges that the evidence did show “substantial price uniformity” and that this is additional proof that defendants conspired against plaintiff in making distribution. We have grave doubts concerning the validity of plaintiff’s legal premise but need not resolve them here. Similarity of prices in the sale of standardized products such as the types of steel involved in this suit will not alone make out a prima facie case of collusive price fixing in violation of the Sherman Act, the reason being that competition will ordinarily cause one producer to charge about the same price that is charged by any other. United States v. International Harvester Co., 274 U.S. 693, 708-709, 47 S.Ct. 748, 71 L.Ed. 1302 (1927); Cement Mfrs. Protective Ass’n v. United States, 268 U.S. 588, 45 S.Ct. 586, 69 L.Ed. 1104 (1925). Of course patterns of uniformity coupled with other related facts, as for example those in American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946), which disclosed that the “Big Three” of the cigarette industry somewhat simultaneously made a series of identical price changes, both up and down, without any economic justification and where the immediate effect was to stifle competition by smaller manufacturers, may constitute sufficient circumstantial evidence to support a" } ]

[ { "docid": "13530362", "title": "", "text": "LOGAN, Circuit Judge. These appeals arise out of Dart Industries, Inc.’s termination of The Plunkett Company of Oklahoma, Inc. as its Tulsa area distributor of the laminates and adhesives it manufactures. Dart sued Plunkett for monies owed on Plunkett’s purchases, after having given credit for returned inventory. Plunkett counterclaimed, alleging antitrust violations. At trial, the only item in dispute on the accounting issue was the amount of credit to be given for cut sheets of plastic Dart repossessed with the other inventory. Dart gave no credit for these materials. The jury award gave Plunkett credit at the same value per square foot as that given for uncut sheets. Dart appeals this determination. The only question is whether the record contains sufficient evidence to support the verdict. We find there is substantial evidence to support the verdict and therefore affirm the judgment entered on the jury verdict on that accounting. Plunkett’s counterclaim alleged Sherman Act § 1, Clayton Act, and Robinson-Patman Act violations. In the alternative, Plunkett sought damages for breach of contract. A month before trial Plunkett sought to amend its pleadings and add a Sherman Act § 2 claim. This motion was denied. Upon cross motions for summary judgment the court granted summary judgment in favor of Dart and dismissed Plunkett’s antitrust claims. Plunkett appeals, asserting that summary judgment was- improper in this case because there exist genuine issues as to material facts. We have examined Plunkett’s contentions and affirm the trial court’s judgment. The situation here involves no more than a manufacturer terminating a distributor with whom it is unhappy and substituting another distributor in its place, sanctioned by United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919). See also Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 78 (9th Cir.1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970). Plunkett alleged that the termination was unlawful because it was motivated by anticompetitive purpose or accompanied by anticompetitive effect. Specifically, Plunkett alleged that the termination implicates (1) price fixing, (2) vertical" }, { "docid": "6819341", "title": "", "text": "A manufacturer which switches distributorships violates antitrust laws only if “the refusal to deal, manifested by a combination or conspiracy, is so anticompetitive, in purpose or effect, or both, as to be an unreasonable restraint of trade.” Alpha Distrib. Co. of Cal., Inc., 454 F.2d at 452. See Mutual Fund Investors v. Putnam Management Co., 553 F.2d 620 (9th Cir. 1977); Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 77-78 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970). Again, “combination or conspiracy” is a necessary condition of liability, and the district court was correct in finding, on the facts before it, that there was neither. For the same reasons, summary judgment on Sierra’s Clayton § 7 claim was appropriate. To prevail on this claim Sierra was required to show that Heublein’s acquisition of United substantially weakened competition, injuring Sierra. See John Lenore & Co. v. Olympia Brewing Co., 550 F.2d 495, 498 (9th Cir. 1977). Here, the alleged causal link between Heublein’s acquisition of United and Sierra’s injury was that Heublein was responsible for the termination of Sierra’s distributorship. The district court could find, on undisputed evidence, that the requisite causation was not established. See In re Multidistrict Vehicle Air Pollution M. D. L. No. 31, 481 F.2d 122 (9th Cir.), cert, denied, sub nom. Morgan v. Automobile Manufacturers Ass’n, Inc., et al., 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973). Finally, entry of summary judgment on Sierra’s Sherman § 2 claim was proper. Sierra’s monopolization theory appeared to hinge on two allegations. First, that Heublein had attempted to monopolize the production of California wines. And second, that by terminating Sierra’s franchise, United was attempting to aid Heublein’s efforts to monopolize sales of domestic wines in Nevada, injuring Sierra. Deposition evidence disproved the Heublein-United combination leg of this analysis. Consequently, even if Heublein had monopolized, or attempted to monopolize, production of California wines, the pleadings do not demonstrate how Sierra was injured by those actions. Without such a showing, Sierra lacked standing to assert" }, { "docid": "18671956", "title": "", "text": "industry, Abell made and sold directly its own product. In doing so, it also made use of independent carriers such as plaintiff in a delivery or distribution system which also utilized street sales and direct home delivery. Although termination of a dealership, franchise or other type of distribution system might, in particular situations, give rise to actions sounding in contract law, the termination standing by itself is not necessarily an antitrust violation. The Bushie court, supra, not only faced a so-called natural monopoly situation but also dealt with a set of facts involving termination of plaintiff’s retail dealership. Holding that such termination was proper absent evidence of conspiracy to eliminate competition in the relevant product market, the court reasoned as follows: It is well settled that a manufacturer may discontinue dealing with a particular distributor “for business reasons which are sufficient to the manufacturer, and adverse effect on the business of the distributor is immaterial in the absence of any arrangement restraining trade.” Ricchetti v. Meister Brau, Inc., 431 F.2d 1211, 1214 (9th Cir. 1970), cert. denied, 401 U.S. 939, 91 S.Ct. 934, 28 L.Ed.2d 219; Jos. E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755, reh. denied, 397 U.S. 1003, 90 S.Ct. 1113, 25 L.Ed.2d 415; Scanlan v. Anheuser-Busch, Inc., 388 F.2d 918 (9th Cir. 1968), cert. denied, 391 U.S. 916, 88 S.Ct. 1810, 20 L.Ed.2d 654. * * * * * * True, the effect of the agreement was to eliminate Bushie as a Stenocord dealer. But this alone would not support a conclusion that Stenocord’s motive was anti-competitive. A manufacturer is free to agree with a third party to give him an exclusive distributorship “even if this means cutting off another distributor,” Jos. E. Seagram & Sons, Inc. v. Hawaiian Oke Liquors, Ltd., supra, 416 F.2d at 76, so long as in doing so there would be no resulting restraint of trade. Ricehetti v. Meister Brau, Inc., supra. To hold otherwise would be to “saddle [defendant] with [plaintiff’s]" }, { "docid": "18671961", "title": "", "text": "(6th Cir.), cert. denied, 375 U.S. 922, 84 S.Ct. 267, 11 L.Ed.2d 166 (1963), none of which are even arguably present here. 426 F.Supp. at 119 (footnote omitted). See also Marquis, supra, 577 F.2d at 640; Knutsen v. Daily Review, 548 F.2d 795, 803 (9th Cir. 1976); Chisholm Bros. Farm Equipment Co. v. International Harvester Co., 498 F.2d 1137, 1143 (9th Cir.), cert. denied, 419 U.S. 1023, 95 S.Ct. 500, 42 L.Ed.2d 298 (1974); Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 76 (9th Cir. 1969); cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 reh. denied, 397 U.S. 1003, 90 S.Ct. 1113, 25 L.Ed.2d 415 (1970). Ace Beer Distributors, supra, involved a situation in which a brewer allegedly conspired to destroy one distributor’s business by terminating its franchise and conducting its business through another distributor. As the court concluded, That, without the results proscribed by the Sherman Act, is not a violation of the Act. A manufacturer has a right to select its customers and to refuse to sell its goods to anyone, for reasons sufficient to itself. United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992. A refusal to deal becomes illegal under the Act only when it produces an unreasonable restraint of trade, such as price fixing, elimination of competition or the creation of a monopoly. United States v. Parke, Davis & Co., 362 U.S. 29, 32, 80 S.Ct. 503, 4 L.Ed.2d 505; Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219; Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162. The fact that a refusal to deal with a particular buyer without more, may have an adverse effect upon the buyer’s business does not make the refusal to deal a violation of the Sherman Act. Damage alone does not constitute liability under the Act. * * * * * * Unless it can be said that the refusal to deal with plaintiff had the result of suppressing" }, { "docid": "3150088", "title": "", "text": "violate Section 1 of the Sherman Act, 15 U.S.C. § 1, and thus hold that they are not clearly erroneous. Under the doctrine stated in Bushie v. Stenocord Corp., 460 F.2d 116 (CA9 1972), appellee was entitled to terminate appellant’s brokerage services provided that valid business reasons underscored the termination and that there was no parallel arrangement for restraining trade. Appellant concedes that a manufacturer may normally control the distribution of its own products, choose its customers as it sees fit, and cease doing business with a particular distributor at any time. United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966); United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), and Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71 (CA9 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970), rehearing denied, 397 U.S. 1003, 90 S.Ct. 1113, 25 L.Ed.2d 415. Appellant also concedes that the district court properly held that the standard for determining whether an arrangement violates Section 1 of the Sherman Act is whether it is so inherently anti-competitive in purpose or effect, or both, as to constitute an unreasonable restraint of trade. At this point, however, the appellant parts company with the lower court and argues that it committed reversible error by holding that the “non-compete” provision was reasonable in scope and duration and served a legitimate business purpose not in restraint of trade. Our examination of the record convinces us that the trial court did not erroneously apply the standards mentioned in Alpha Distributing Co. of Cal., Inc. v. Jack Daniel Distillery, 454 F.2d 442, 452 (CA9 1972), and that there is ample evidence in support of its finding that the “non-compete” provision was reasonable in scope and duration and served a legitimate business purpose not in restraint of trade. Appellant’s contention that there was an oral brokerage contract between appellant and appellee to last as long as appellant ably performed its responsibility, and that appellee breached that contract, presents" }, { "docid": "22022403", "title": "", "text": "L.Ed. 949 (1941). The court in McQuade then went on to state, 467 F.2d at 187: “In all of these cases, the touchstone of per se illegality has been the purpose and effect of the arrangment in question. Where exclusionary or coercive conduct has been present, the arrangements have been viewed as ‘naked restraints of trade,’ and have fallen victim to the per se rule. On the other hand, where these elements have been missing, the per se rule has not been applied to collective refusals to deal. See, e. g., Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 9th Cir. 1969, 416 F.2d 71, cert. denied 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970) ... We conclude that resort to the per se rule is justified only when the presence of exclusionary or coercive conduct warrants the view that the arrangement in question is a ‘naked restraint of trade.’ Absent these factors, the rule of reason must be followed in determining the legality of the arrangement.” It is at once apparent that the instant case falls into none of the categories of cases listed in McQuade as concerted refusals to deal which have been held to be per se violations. It seems to fit instead into the “rule of reason” category, of which Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970), is an outstanding and often cited example. In Seagram, plaintiff Hawaiian Oke was the sole distributor of several of the products man ufaetured and sold by defendants Seagram & Sons, Inc. and Barton Distillery Company. There was evidence that it was desirable to market the Seagram and Barton products in combination. Defendant McKesson and Robbins, Inc., which was also in the distributing business, solieted both Seagram and Barton for, and obtained from them, the distribution rights previously enjoyed by Hawaiian Oke. Judgment was entered on the jury’s verdict in favor of Hawaiian Oke. The Court of Appeals reversed with directions" }, { "docid": "6408744", "title": "", "text": "cert. denied, 408 U.S. 922, 92 S.Ct. 2488, 33 L.Ed.2d 333 (1972), where the court concluded: “Assuming that there were some discussions between Kidde and its puppet, Fyre-Safety, which resulted in a refusal to sell to Beckman, the court cannot conclude that such discussions constitute a combination within the meaning of Section 1 of the Sherman Act or that they represent more than internal dialogue leading to a decision on the part of a single business unit to exercise its right to select or disenfranchise a particular distributor.” 316 F.Supp. at 1326. See also I. Haas Trucking Corp. v. New York Fruit Auction Corp., 364 F.Supp. 868, 873 (S.D.N.Y.1973). (b) Harvester’s Sales Branches According to plaintiffs, the real objective of the § 1 conspiracy was to promote retail truck sales by Harvester’s unincorporated sales branches to the detriment of independent franchised dealers. For the purpose of satisfying the co-conspirator requirement of § 1, however, these unincorporated sales branches are on a lesser footing than IHCC. Although there is authority for the proposition that a manufacturer may conspire within the meaning of § 1 with its wholly or partially owned incorporated dealerships, see Mt. Lebanon Motors, Inc. v. Chrysler Corporation, 283 F.Supp. 453, 568-60 (W.D.Pa.1968); Coleman Motor Co. v. Chrysler Corp., 376 F.Supp. 546, 552-54 (W.D.Pa. 1974), judgment vacated on other grounds, 525 F.2d 1338 (3 Cir. 1975); and also Rea v. Ford Motor Co., 355 F.Supp. 842, 864 (W.D.Pa.1973), rev’d on other grounds, 497 F.2d 577, 590 (3 Cir.), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 106 (1974); Chisholm Bros. Farm Equip. Co. v. International Harvester Co., 498 F.2d 1137, 1142 n. 10 (9 Cir.), cert. denied, 419 U.S. 1023, 95 S.Ct. 500, 42 L.Ed.2d 298 (1974), there is neither precedent nor reasoning supporting an expansion of those cases to unincorporated sales divisions. In fact, the case law is all to the contrary. See Joseph E. Seagram and Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 82-84 (9 Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970); Poller v." }, { "docid": "23579009", "title": "", "text": "Inc., 537 F.2d 1307, 1315, 1319-1320 (5th Cir. 1976). The meeting of their minds on that subject, even temporarily, satisfies the conceptual need for a combination, and the Supreme Court has rejected the notion that a plaintiff’s participation in such a scheme would result in “unclean hands.” Perm a Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968). H&B, however, could hardly be said to have agreed with International Harvester that H&B would be driven to financial ruin. See Walker v. Providence Journal Co., 493 F.2d 82, 87 (1st Cir. 1974) (refusal to deal). Consequently, H&B has attempted to identify a co-conspirator within the International Harvester organization. One point that is well established, at least within this Circuit, is that a corporation cannot conspire with its wholly-owned, unincorporated sales division. Cliff Food Stores, Inc. v. Kroger, Inc., 417 F.2d 203, 205-206 (5th Cir. 1969). Accord, Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 82-84 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970); Ark Dental Supply Co. v. Cavitron Corp., 461 F.2d 1093, 1094-1095 n. 1 (3d Cir. 1972). But cf. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 469 n. 4, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (declining to reach the question). Treble damages should not be assessed against a corporation merely because it has adopted an organizational division of labor, especially when the separate parts are united under corporate law. Applied here, that principle eliminates the possibility that the company store might be a co-conspirator. Though it kept separate books, it was not separately incorporated, it bore the International Harvester name, and the company absorbed all losses. H&B argues that even if the store is not a separate conspirator, its manager, Clay Mumme, may be. This proposition swims upstream, because as a general rule a corporation cannot conspire with its own employees. Solomon v. Houston Corrugated Box Co., 526 F.2d 389 (5th Cir. 1976); Nelson Radio & Supply Co. v. Motorola, 200 F.2d 911 (5th" }, { "docid": "7238442", "title": "", "text": "franchise system has been instituted. Plaintiff Fox was in the same position before he sold his route. Accordingly, these plaintiffs do not challenge The News’ decision to terminate sales to the other plaintiffs. Instead, they contend that they have been injured by the provision in the franchise agreement which requires the franchise dealers to resell The News at stipulated prices and by the price discrimination practiced by The News against them. They allege that the franchise agreement substitutes the judgment of The News for the forces of the competitive market and severely limits their ability to compete and survive. Cf. Albrecht v. Herald Co., 390 U.S. 145, 152, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). Since the record amply demonstrates the validity of this contention, they have established all the elements of a Sherman Act violation and are entitled to recover treble damages regardless of whether The News could lawfully have terminated sales to them or to the other plaintiffs. See United States v. Parke, Davis & Co., infra; GAF Corporation v. Circle Floor Co., Inc., supra. . The News cites many cases for the proposition that a producer is.free to replace one distributor with another. See e. g., United States v. Arnold, Schwinn & Co., 388 U.S. 365, 376, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967); Anaya v. Las Cruces Sun News, 455 F.2d 670 (10th Cir. 1972); Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., .416 F.2d 71, 76 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755, reh. denied, 397 U.S. 1003, 90 S.Ct. 1113, 25 L.Ed.2d 415 (1970); Ace Beer Distributors, Inc. v. Kohn, Inc., 318 F.2d 283, 286-87 (6th Cir. 1963). In doing so, it argues that “[t]he record clearly shows that any adverse economic impact on plaintiffs’ businesses is attributable solely to The News’ termination of sales to such plaintiffs.” Brief for Defendants at 20. Thus, it contends that even if the franchise agreement is illegal, the plaintiffs" }, { "docid": "5966260", "title": "", "text": "facts of this case. Not all agreements between competitors to cease dealing with a third party are per se “in restraint of trade” within the meaning of section 1 of the Sherman Act. Neeld v. National Hockey League, 594 F.2d 1297, 1299-1300 (9th Cir. 1979); Ackerman-Chillingworth v. Pacific Elec. Contractors Ass’n, 579 F.2d 484, 490 n.7 (9th Cir. 1978), cert. denied, 439 U.S. 1089, 99 S.Ct. 872, 59 L.Ed.2d 56 (1979); Bridge Corp. of America v. American Contract Bridge League, Inc., 428 F.2d 1365, 1369—70 (9th Cir. 1970), cert. denied, 401 U.S. 940, 91 S.Ct. 940, 28 L.Ed.2d 220 (1971); Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 76 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970). Where an agreement between competitors “having a primary purpose and direct effect of accomplishing a legitimate business objective is also alleged to have had an incidental and indirect adverse effect upon the business of some competitors,” United States v. Hilton Hotels Corp., 467 F.2d 1000, 1003 (9th Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 938, 35 L.Ed.2d 256 (1973), the agreement is tested under the “rule of reason.” Id. at 1003 n.2. See Neeld v. National Hockey League, supra, 594 F.2d at 1299-1300; Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., supra, 416 F.2d at 76-80. See also Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 2558, 53 L.Ed.2d 568 (1977) (“Per se rules of illegality are appropriate only when they relate to conduct that is manifestly anti-competitive.”). The district court found that Summa’s action by Bennett to terminate its advertising account with the Las Vegas Sun was motivated by legitimate business considerations and had an insignificant effect on the Sun’s business. Summa had apparently decided that it could advertise more cheaply and effectively in the Sun’s competitor, the Review-Journal. We see no reason to disturb the district court’s finding. Thus, the alleged agreement among the six hotel-casinos controlled by Summa to cease dealing with the Sun" }, { "docid": "18674856", "title": "", "text": "a conspiracy to boycott on the part of a parent and its wholly owned subsidiary has been found; indeed, the Second Circuit has explicitly left open the question of whether a group boycott conspiracy could be found in such a situation. See International Railways of Central America v. United Brands Co., 532 F.2d 231, 240 (2d Cir.), cert. denied, 429 U.S. 835, 97 S.Ct. 101, 50 L.Ed.2d 100 (1976). See also Triebwasser & Katz v. American Telephone & Telegraph Co., 535 F.2d 1356, 1358-59 n.1 (2d Cir. 1976) (expressing skepticism toward the doctrine of intra-enterprise conspiracy). Second, the conduct alleged here is essentially consultation between General Motors and Opel concerning company-wide General Motors policies for the sale of General Motors engines to other manufacturers. A parent corporation and its subsidiary surely must be able to consult on some matters of company policy without violating the antitrust laws — absent a demonstration of anticompetitive motivation. See Joseph E. Seagram and Sons v. Hawaiian Oke and Liquors, Ltd., 416 F.2d 71 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970). The consultations involved here are well within the range of normal business activities between a parent and a subsidiary. And no evidence of an anti-competitive objective has been presented. Finally, the allegation that there was a group boycott conspiracy between General Motors and Opel to prevent the importation and sale of the Indra in the United States seems rather bizarre, since the Indra was created only after Opel had agreed to supply Opel components and Chevrolet 327 engines to Reisner. If Opel and General Motors were concerned with preventing the Indra from being sold in the United States, why did Opel make its creation possible? Cf. Speed Auto Sales, Inc. v. American Motors Corp., 477 F.Supp. 1193, 1196 (E.D.N.Y.1979) (“no logical basis” for anticompetitive conspiracy since the supposed beneficiary of the conspiracy could have accomplished the objective alone); Diehl & Sons v. Interna tional Harvester Co., 426 F.Supp. 110, 117 (S.D.N.Y.1976) (same). Accordingly, the plaintiffs’ motion for leave to file a second amended complaint is denied." }, { "docid": "204045", "title": "", "text": "436, 87 L.Ed. 556 (1943), the Second Circuit held that the right to franchise necessarily validated the type of location clauses typically included in automobile franchise agreements. The court specifically held that a dealer contract clause could “fix a location for the sale of used cars at a place that did not unduly affect other dealers.” This holding with respect to automobile franchises is completely consistent with the holdings of the Courts of Appeals in other franchising cases. For instance, in Colorado Pump & Supply Co. v. Febco, Inc., 472 F.2d 637 (10th Cir.), cert. denied, 411 U.S. 987, 93 S.Ct. 2274, 36 L.Ed.2d 965 (1973), this court held that an exclusive dealing contract merely assigning a territory within which the distributor was authorized to sell and which did not mention, much less forbid, sales outside that territory was clearly lawful. See also Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 76, 80 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970); Ace Beer Distributors, Inc. v. Kohn, Inc., 318 F.2d 283 (6th Cir.), cert. denied, 375 U.S. 922, 84 S.Ct. 267, 11 L.Ed.2d 166 (1963). There is nothing in the complaint, nor for that matter in the facts subsequently developed by Denver Buick in opposition to the General Motors’ summary judgment motion on the First Claim for Relief, indicating that General Motors did anything other than simply assert its rights under the terms of the clause by insisting on the right to approve a new location for Denver Buick. There is no allegation that General Motors assigned territories outside of which dealers could not sell, and in fact the appellant admits otherwise (Br. 57). Accordingly, the Section 1 allegations were properly dismissed, since the location clause is valid as a matter of law, and there are no allegations that would amount to an unlawful use of the clause. Denver Buick also alleged that General Motors conspired with Deane Buick “to monopolize the Denver metropolitan market in the sale of new Buick and Opel automobiles . ." }, { "docid": "204044", "title": "", "text": "we affirm the judgment on the ADFA claim. II. Denver Buick also claims that its Sherman Act allegations were improperly dismissed by the district court. The alleged violations of Section 1 concerned the “location clause” in the standard Buick franchise agreement. Denver Buick contends that the location clause is per se illegal as a restraint of trade. In a sense, we have already addressed this question, since as indicated in Part I of this opinion, we find nothing unfair in the right of General Motors to approve the location of its dealers. United States v. Arnold, Schwinn & Co., 388 U.S. 365, 376, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967), states that: [A] manufacturer of a product [for which] equivalent brands of which are readily available in the market may select his customers, and for this pur pose he may “franchise” certain dealers to whom, alone, he will sell his goods. In Boro Hall Corp. v. General Motors Corp., 124 F.2d 822, 824, reh. denied, 130 F.2d 196, cert. denied, 317 U.S. 695, 63 S.Ct. 436, 87 L.Ed. 556 (1943), the Second Circuit held that the right to franchise necessarily validated the type of location clauses typically included in automobile franchise agreements. The court specifically held that a dealer contract clause could “fix a location for the sale of used cars at a place that did not unduly affect other dealers.” This holding with respect to automobile franchises is completely consistent with the holdings of the Courts of Appeals in other franchising cases. For instance, in Colorado Pump & Supply Co. v. Febco, Inc., 472 F.2d 637 (10th Cir.), cert. denied, 411 U.S. 987, 93 S.Ct. 2274, 36 L.Ed.2d 965 (1973), this court held that an exclusive dealing contract merely assigning a territory within which the distributor was authorized to sell and which did not mention, much less forbid, sales outside that territory was clearly lawful. See also Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 76, 80 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970);" }, { "docid": "7238443", "title": "", "text": "other plaintiffs. See United States v. Parke, Davis & Co., infra; GAF Corporation v. Circle Floor Co., Inc., supra. . The News cites many cases for the proposition that a producer is.free to replace one distributor with another. See e. g., United States v. Arnold, Schwinn & Co., 388 U.S. 365, 376, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967); Anaya v. Las Cruces Sun News, 455 F.2d 670 (10th Cir. 1972); Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., .416 F.2d 71, 76 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755, reh. denied, 397 U.S. 1003, 90 S.Ct. 1113, 25 L.Ed.2d 415 (1970); Ace Beer Distributors, Inc. v. Kohn, Inc., 318 F.2d 283, 286-87 (6th Cir. 1963). In doing so, it argues that “[t]he record clearly shows that any adverse economic impact on plaintiffs’ businesses is attributable solely to The News’ termination of sales to such plaintiffs.” Brief for Defendants at 20. Thus, it contends that even if the franchise agreement is illegal, the plaintiffs were not injured by reason of anything in it and that the only private- parties with standing to challenge it are the franchise dealers. . The News concedes that this allegation raises the “most critical issue” in the case. The reason is clear. It is well settled that any attempt by a producer to secure resale price maintenance which goes beyond the “mere announcement of his policy” regarding prices and “the simple refusal to deal” is unlawful. United States v. Parke, Davis & Co., 362 U.S. 29, 44-45, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960). See also, Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968) Simpson v. Union Oil Co., 377 U.S. 13, 17, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964). Cf. Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 78 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755, reh. denied, 397 U.S. 1003, 90 S.Ct. 1113, 25 L.Ed.2d 415 (1970). Thus, if The News terminated" }, { "docid": "6408745", "title": "", "text": "may conspire within the meaning of § 1 with its wholly or partially owned incorporated dealerships, see Mt. Lebanon Motors, Inc. v. Chrysler Corporation, 283 F.Supp. 453, 568-60 (W.D.Pa.1968); Coleman Motor Co. v. Chrysler Corp., 376 F.Supp. 546, 552-54 (W.D.Pa. 1974), judgment vacated on other grounds, 525 F.2d 1338 (3 Cir. 1975); and also Rea v. Ford Motor Co., 355 F.Supp. 842, 864 (W.D.Pa.1973), rev’d on other grounds, 497 F.2d 577, 590 (3 Cir.), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 106 (1974); Chisholm Bros. Farm Equip. Co. v. International Harvester Co., 498 F.2d 1137, 1142 n. 10 (9 Cir.), cert. denied, 419 U.S. 1023, 95 S.Ct. 500, 42 L.Ed.2d 298 (1974), there is neither precedent nor reasoning supporting an expansion of those cases to unincorporated sales divisions. In fact, the case law is all to the contrary. See Joseph E. Seagram and Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 82-84 (9 Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970); Poller v. Columbia Broadcasting System, Inc., 109 U.S.App.D.C. 170, 284 F.2d 599, 603 (1960), rev’d on other grounds, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Nelson Radio & Supply Company v. Motorola, 200 F.2d 911, 914 (5 Cir. 1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953); Cliff Food Stores, Inc. v. Kroger, Inc., 417 F.2d 203, 206 (5 Cir. 1969); Ark Dental Supply Co. v. Cavitron Corp., 323 F.Supp. 1145, 1148 (E.D.Pa. 1971), aff’d per curiam, 461 F.2d 1093 (3 Cir. 1972); cf. Syracuse Broadcasting Corp. v. Newhouse, 319 F.2d 683, 687 (2 Cir. 1963). (c) TRAC’s Competitors Although plaintiffs have repeatedly contended that the objective of any conspiracy to injure Diehl as a viable Harvester dealer was to benefit Harvester’s own sales branches, faced with Harvester’s summary judgment motion, plaintiffs now proffer TRAC’s alleged competitors in the truck leasing business as co-conspirators. Plaintiffs have failed to explain, however, what part TRAC’s competitors played in this conspiracy. No contention is made that TRAC’s alleged competitors brought pressure to bear" }, { "docid": "18893482", "title": "", "text": "a conspiracy in restraint of trade, in violation of Section 1 of the Sherman Act. Defendants concede for the purposes of argument, as the Complaint alleges, that Dr. Magovern rejected the application of Dr. Robinson to “preserve, protect and perpetuate control” of cardiothoracic surgery at AGH. They contend, however, that the charges are only that AGH refused the application because of agreement with Dr. Magovern that he should “perpetuate control” over this branch of surgery. They then cite Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke and Liquors, Ltd., 416 F.2d 71 (9th Cir. 1969), cert. den. 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970), which held that a single manufacturer or seller can ordinarily stop doing business with A and transfer his business to B, and that such transfer is valid even though B may have solicited the transfer and even though the seller and B may have agreed prior to the seller’s termination of A. The Defendants further cite Ark Dental Supply Co. v. Cavitron Corporation, 461 F.2d 1093 (3rd Cir. 1972), holding to the same effect. Dr. Robinson, however, asserts that the Court concluded in Seagram that there was no evidence that Seagram or Barton had any anti-competitive motive for terminating the plaintiff as their distributor, and there were no price fixing or other similar motives, demands, or activities involved. The Court also agreed “that ‘combination or conspiracy’ to establish a common distributor could be shown to have such an adverse purpose or effect on competition that it would violate Section 1 of the Sherman Act as an unreasonable restraint of trade.” (416 F.2d at 78). In this case, the Plaintiff has alleged that the Defendants’ refusal to deal was anti-competitive in purpose and effect, and thus is not within the rule of the Seagram case. Dr. Robinson also cites De Filippo v. Ford Motor Co., 516 F.2d 1313, 1318 (3rd Cir.), cert. den. 423 U.S. 912, 96 S.Ct. 216, 46 L.Ed.2d 141 (1975), in which Judge Aldisert stated: “From all this we are able to conclude that a concerted activity constitutes a ‘group" }, { "docid": "22022404", "title": "", "text": "at once apparent that the instant case falls into none of the categories of cases listed in McQuade as concerted refusals to deal which have been held to be per se violations. It seems to fit instead into the “rule of reason” category, of which Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970), is an outstanding and often cited example. In Seagram, plaintiff Hawaiian Oke was the sole distributor of several of the products man ufaetured and sold by defendants Seagram & Sons, Inc. and Barton Distillery Company. There was evidence that it was desirable to market the Seagram and Barton products in combination. Defendant McKesson and Robbins, Inc., which was also in the distributing business, solieted both Seagram and Barton for, and obtained from them, the distribution rights previously enjoyed by Hawaiian Oke. Judgment was entered on the jury’s verdict in favor of Hawaiian Oke. The Court of Appeals reversed with directions to dismiss the action, ruling that there was no per se violation and that, in the absence of evidence of some forbidden or anti-competitive motive, there was no evidence to support a finding of any unreasonable restraint of trade in defendants’ conduct toward Hawaiian Oke. The principal holding Seagram was summarized thus by the Court of Appeals for the Third Circuit in Ark Dental Supply Company v. Cavitron Corporation, 3 Cir., 461 F.2d 1093, 1094 (1972) : “In a thorough and well-researched opinion, the court, speaking through Judge Duniway, held that it is indisputable that a single manufacturer or seller can ordinarily stop doing business with A and transfer his business to B and that such a transfer is valid even though B may have solicited the transfer and even though the seller and B may have agreed prior to the seller’s termination of A.” The principle was reiterated by the Ninth Circuit in Ricchetti v. Meister Brau, Inc., 9 Cir., 431 F.2d 1211, 1214 (1970), cert. denied, 401 U.S. 939, 91 S.Ct. 934, 28" }, { "docid": "2200615", "title": "", "text": "by independent dealers, and other preferential treatment of factory dealers, would tend to monopolize the Dodge market in Allegheny County. The plain implication of his testimony is that factory dealers would take sales away from independent dealers by these practices. The jury may also have determined that Chrysler deliberately took advantage of Coleman’s financial situation. Plaintiff was in breach of its Direct Dealer Agreement because it had not met its minimum sales requirement between 1962 and 1969, except in 1963. Consequently, Chrysler had the right under the agreement to terminate plaintiff’s franchise. Chrysler apparently chose to let plaintiff remain in existence and contribute to overall sales of Dodge vehicles. While plaintiff was losing money, Chrysler was subsidizing factory dealer losses. When plaintiff went out of business, Boulevard Dodge low ered its advertising expenses and, after 1971, operated at a profit. Thus, the jury could have concluded that Chrysler had accomplished its purposes of increasing Dodge sales and consolidating retail sales in the hands of several strong Chrysler-controlled dealerships. C. The Violation The question thus posed is whether the above findings are sufficient to establish an unreasonable restraint of trade under section one of the Sherman Act. The problem is one of restraint vel non in intrabrand competition. Although appellate courts have considered various restraints in an intrabrand context, see, e. g., United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1968) (territorial restrictions); Copper Liquor, Inc. v. Adolph Coors Co., 506 F.2d 934 (5th Cir. 1975) (territorial restrictions); Ark Dental Supply Company v. Cavitron Corporation, 461 F.2d 1093 (3d Cir. 1972) (refusal to deal); Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970) (refusal to deal), the precise question presented here — reduction in intrabrand competition by a tendency toward a vertically integrated distribution system — does not appear to have been addressed by any other appellate court as yet. Relying on Klor’s Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79" }, { "docid": "10523741", "title": "", "text": "[emphasis added]. Zidell does not alter the requirement that a plaintiff first establish a conspiracy, nor does it address the showing required in the context of a summary judgment motion, which Filco does. Second, the Zidell court discussed intent only after it was satisfied that a price-fixing conspiracy existed and in the context of the degree to which an anticompetitive motive must be shown to warrant applying a per se rule to a dealer termination which might be part of such a conspiracy, or might be pursuant to a lawful purpose. Compare Cernuto with, e.g., Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71 (9th Cir.1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970). In so doing it does not recast the objective standard for what constitutes a per se violation. Third, the conspiracy in the Zidell case was essentially a horizontal conspiracy to allocate markets in which the pressure on the supplier leading to plaintiffs termination was pressure from a competing supplier, not pressure from the terminating supplier’s own dealer. Conclusion It is inappropriate to infer concerted action or a price-fixing agreement from “highly ambiguous evidence.” Monsanto, 104 S.Ct. at 1470. The Court therefore grants defendant's motion for summary judgment on the ground that plaintiffs have not presented a record sufficient to support a reasonable finding in their favor. See Filco; General Business Systems; JBL Enterprises, Inc. v. Jhirmack Enterprises, Inc., 698 F.2d 1011 (9th Cir.1983); Continental T.V. Inc. v. GTE Sylvania, Inc., 694 F.2d 1132 (9th Cir.1982); Chisholm Bros. Farm Equipment Co. v. International Harvester Co., 498 F.2d 1137 (9th Cir.1974). IT IS SO ORDERED. . Argument was heard on November 28, 1983. Defendant's motion for reconsideration and for summary judgment was granted from the bench in accordance with the court’s written tentative ruling which was issued prior to argument and is part of the record. Proposed findings and conclusions were lodged by defendant December 21; plaintiff’s response thereto was lodged January 13, 1984; and defendant’s supplementary memorandum in support was filed on January 23. Regrettably both the" }, { "docid": "18671960", "title": "", "text": "Holding that there was no conspiracy in restraint of trade and that the relevant market could not consist solely of the brand of vehicle produced only by Harvester, the court noted that “Harvester could unilaterally have driven Diehl out of the market for Harvester products, as it ultimately did on April 21, 1975.” 426 F.Supp. at 117. Insofar as any restraint of trade was concerned, the court reasoned as follows: Thus, even assuming that some conspiracy did exist between Harvester and someone else to eliminate Diehl and TRAC as retailers of Harvester products, such conduct is without antitrust significance. No antitrust objective would be served by holding that a manufacturer cannot terminate its independent distributors and replace them with its own distribution system, absent a showing that the termination was designed to further some collateral prohibited activity, such as, enforcing a tying arrangement, eliminating price-cutters, or creating or strengthening a monopoly position, see Bushie v. Stenocord Corp., 460 F.2d 116, 119 (9th Cir. 1972); Ace Beer Distributors, Inc. v. Kohn, Inc., 318 F.2d 283, 287 (6th Cir.), cert. denied, 375 U.S. 922, 84 S.Ct. 267, 11 L.Ed.2d 166 (1963), none of which are even arguably present here. 426 F.Supp. at 119 (footnote omitted). See also Marquis, supra, 577 F.2d at 640; Knutsen v. Daily Review, 548 F.2d 795, 803 (9th Cir. 1976); Chisholm Bros. Farm Equipment Co. v. International Harvester Co., 498 F.2d 1137, 1143 (9th Cir.), cert. denied, 419 U.S. 1023, 95 S.Ct. 500, 42 L.Ed.2d 298 (1974); Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 76 (9th Cir. 1969); cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 reh. denied, 397 U.S. 1003, 90 S.Ct. 1113, 25 L.Ed.2d 415 (1970). Ace Beer Distributors, supra, involved a situation in which a brewer allegedly conspired to destroy one distributor’s business by terminating its franchise and conducting its business through another distributor. As the court concluded, That, without the results proscribed by the Sherman Act, is not a violation of the Act. A manufacturer has a right to select its customers and" } ]

[ { "docid": "15813268", "title": "", "text": "later. Secretary’s Br. at 8. The Secretary acknowledges that, although the liberalizing law pursuant to which benefits were eventually awarded was not promulgated until June 1994, the RO, pursuant to the Nehmer Stipulation, awarded the appellant an effective date prior to June 1994 based on her 1989 claim. Secretary’s Br. at 8-9. In sum, the Secretary concludes that there is no legal basis for assigning an effective date prior to the date of the appellant’s 1989 claim. Secretary’s Br. at 4, 9. II. ANALYSIS The determination of the effective date for an original claim or a reopened claim is governed by 38 U.S.C. § 5110(a), which provides: “Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim [or] a claim reopened after final adjudication ... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” See 38 C.F.R. § 3.400 (2000). Thus, in general, the effective date for an award of benefits will be based on the date of the claim that resulted in that award. See Lalonde v. West, 12 Vet.App. 377, 380 (1999). However, pursuant to 38 U.S.C. § 5110(g), “where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with facts found but shall not be earlier than the effective date of the Act or administrative issue.” See McCay v. Brown, 9 Vet.App. 183, 187 (1996) (“plain language of section 5110(g) prohibits a retroactive award prior to the effective date of the legislation”), aff'd, 106 F.3d 1577 (Fed.Cir.1997); 38 C.F.R. § 3.114(a) (1999). Additionally, for claims based on diseases deemed by the Secretary to be related to herbicide exposure, the Nehmer Stipulation provides that “as to any denials of claims which were voided as a result of [.Nehmer I], the effective date for disability compensation or [DIC], if the claim is allowed upon readjudication ... will be the date the claim giving rise to the" } ]

[ { "docid": "19199206", "title": "", "text": "of review set forth in 38 U.S.C. § 7261(a)(4). See Johnston v. Brown, 10 Vet.App. 80, 84 (1997); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). The Court must set aside a finding of material fact as clearly erroneous when the Court, after reviewing the entire evidence of record, “is left with a definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Gilbert, 1 Vet.App. at 52. The Court may reach this conclusion only if there is no “plausible basis” in the record, viewed in its entirety, for the Board’s findings. Gilbert, 1 Vet.App. at 52-53. The Court may not substitute its judgment for the factual determinations of the Board on issues of material fact merely because the Court would have decided those issues differently in the first instance. Id. at 52; see Mariano v. Principi, 17 Vet.App. 305, 313 (2003). Before deciding a claim, the Board is required to consider all relevant evidence of record and to consider and discuss in its decision all “potentially applicable” provisions of law and regulation. Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(a); Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (per curiam order). In addition, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed.Cir.1996) (table); Gilbert, 1 Vet.App. at 57. In order to establish a claim for service connection, the appellant" }, { "docid": "19328528", "title": "", "text": "has been committed.’ ” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Service connection is awarded to a claimant where there is (1) medical evidence of a current disability; (2) medical evidence or, in certain circumstances, lay evidence of in-service incur-rence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet.App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2003). When rendering its decision, the Board must consider all relevant evidence of record and address in its decision all potentially applicable provisions of law and regulation. See Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(a)(d)(1). The Board also is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; that statement must be adequate to enable an appellant to understand the precise basis for the decision, as well as to facilitate review in the Court. See Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. This is especially true in a case such as this where a veteran’s records are lost and the Board has a heightened duty to provide a full explanation of the reasons or bases for it findings. See Moore, supra; O’Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). In its adjudication of this matter, the Board, relying upon Reonal and Swann, both supra, determined that it would not give probative value to the private audiologist’s letter. That letter, dated almost 46 years after Mr. Kowalski’s separation from service, provided an opinion based on service history related by Mr. Kowalski. Indeed, there was very little detail in that letter, and the Board had a basis for attributing less probative value to the letter. Cf. Reonal and Swann, both supra. The Court is not satisfied, however, that the" }, { "docid": "23631043", "title": "", "text": "the examiner’s qualifications, and the January 2002 examination was incomplete, we cannot conclude that the Board’s determination that there was adequate medical evidence to rate the disability was erroneous. B. VCAA Notice Upon receipt of a complete or substantially complete application for benefits, the Secretary is required to inform the claimant of the information and evidence not of record (1) that is necessary to substantiate the claim, (2) that the Secretary will seek to obtain, if any, and (3) that the claimant is expected to provide, if any. See 38 U.S.C. § 5103(a); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (2006). The Secretary is also required to “request that the claimant provide any evidence in the claimant’s possession that pertains to the claim.” 38 C.F.R. § 3.159(b)(1); see Pelegrini v. Principi, 18 Vet.App. 112, 121 (2004). VA’s regulations implementing section 5103(a) were made applicable to all cases pending before VA on or after November 9, 2000. See 38 C.F.R. § 3.159; see also Dingess v. Nicholson, 19 Vet.App. 473, 483 (2006). The Court applies the “clearly erroneous” standard of review to the Board’s factual determination that VCAA notice had been satisfied. See 38 U.S.C. § 7261(a)(4); Prickett v. Nicholson, 20 Vet.App. 370, 378-79 (2006). Under the “clearly erroneous” standard of review, the Court may only set aside a finding of material fact when, after reviewing the record as a whole, it is “left with the definite and firm conviction that a mistake has been committed.” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1991) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). When applying this standard, “ ‘[i]f the [Board’s] account of the evidence is plausible in light of the record viewed in its entirety, the [Court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). 1. Low-Back Claim Concerning Mr." }, { "docid": "1125443", "title": "", "text": "Board fail to provide adequate reasons or bases for its basic conclusion (see 38 U.S.C. § 7104(d)(1)), as the Secretary has conceded, and to base its decision “on the entire record” (38 U.S.C. § 7104(a)), and not only does the record fail to provide a plausible basis for a denial of TDIU, but all the evidence supported the veteran’s claim for a TDIU rating. See 38 C.F.R. §§ 3.340, 3.341, 4.16. There was no evidence to the contrary. See Traut v. Brown, 6 Vet.App. 495, 498-99 (1994); Harder, supra (Court reversed where Board gave VA physician’s diagnoses “lesser weight in the face of no contrary evidence”); Hanson v. Derwinski, 1 Vet.App. 512, 516 (1991) (Court reversed and held that there “is nothing of probative value in the record” to refute medical evidence showing that Tourette’s disease was incurred in service); Meister v. Derwinski, 1 Vet.App. 472, 473 (1991) (Court reversed where two medical opinions supported secondary service connection and there was “no competent medical authority” to the contrary). Although in our prior cases reversing for a TDIU rating there has generally been an unequivocal professional opinion of record that the veteran was unemployable, see, e.g., Brown (Mitchell) v. Brown, 4 Vet.App. 307, 308 (1993); Moore, 1 Vet.App. at 357-58, we have never established that such an opinion is an evidentiary prerequisite to a holding of clear error as to a TDIU rating. Reversals without such an opinion should be rare, but, on the particular facts in this record, we are left with the “definite and firm conviction that a mistake has been committed”. Gilbert, 1 Vet.App. at 52 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). We are further convinced that there are not “two permissible views of the evidence” in this regard. Ibid, (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)). Moreover, we believe that Dr. Purdy’s April 1989 advice to the veteran “to retire because of [his] disability” (R. at 36) may fairly be read," }, { "docid": "9831600", "title": "", "text": "record; the statement must be adequate to enable the claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Simon v. Derwinski 2 Vet.App. 621, 622 (1992); Masors v. Derwinski 2 Vet.App. 181, 188 (1992); Gilbert v. Derwinski 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Abernathy v. Principi 3 Vet.App. 461, 465 (1992); Gilbert, supra. b. Applicability of Smith opinion: The Secretary identifies the issue surrounding the BVA’s nonconsideration of the veteran’s 1989 hearing testimony as one of CUE under 38 C.F.R. § 3.105(a) (1996), which provides in pertinent part: “Where evidence establishes [CUE], the prior decision will be reversed or amended. For the purpose of authorizing benefits ... reversal of a prior decision on the grounds of [CUE] has the same effect as if the corrected decision had been made on the date of the reversed decision.” He points out that the decision in Smith (William) v. Brown, 35 F.3d 1516 (Fed.Cir.1994), “precludes reliance on a claim of [CUE] to collaterally attack a BVA decision” and that the November 1990 RO “finding that a factual basis for a 40% rating was ascertainable at an even earlier date would necessarily constitute a collateral attack on the BVA’s decision” in March 1990 because the BVA had there accounted for the 1989 hearing evidence in determining that the veteran did not meet the criteria for an increased rating. Br. at 13-14. For his part, the appellant contends that the March 1990 BVA decision — because it denied an increased rating — never had occasion to address the issue of a .proper effective date for an increased rating and that, therefore, the" }, { "docid": "18546858", "title": "", "text": "the appellant was diagnosed with schizophrenia and that such illness existed in service and because they indicate that the appellant may have been insane when he went AWOL. The question of insanity at AWOL is the determinative issue as discussed in part II. B.2.b., below. This new evidence is material because, when viewed in the context of all the evidence or record, there is a reasonable possibility of a changed outcome on the appellant’s charaeter-of-discharge determination. 2. Status as a “veteran”. This Court will not overturn the BVA’s factual findings unless they are “clearly erroneous”. 38 U.S.C. § 7261(a)(4); see Francisco v. Brown, 7 Vet.App. 55, 57 (1994); Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990). Under this standard of review, “if there is a ‘plausible’ basis in the record for the factual determinations of the BVA, even if this Court might not have reached the same factual determinations, [the Court] cannot overturn them.” Gilbert, 1 Vet.App. at 53. The Board is required to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Masors, 2 Vet.App. at 188; Gilbert, 1 Vet.App. at 57. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the'reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, supra. a. Willful and persistent misconduct: “In order to qualify for VA benefits, a claimant must demonstrate that he, she, or the party upon whose service the claimant predicates the claim [had the status of] a ‘veteran.’ ” Cropper, 6 Vet.App. at 452 (citing Aguilar v. Derwinski, 2 Vet.App." }, { "docid": "22230543", "title": "", "text": "16 Vet.App. 309, 318 (2002), this Court held that the opinion in Rodriguez, supra, was binding on this Court because it “represented] a holding that section 5110’s command as to effective dates is not subject to equitable tolling based on a failure to follow section 7722(d).” Accordingly, the appellant cannot find relief through the equitable tolling of 38 U.S.C. § 5110(d)(1) based on the fact that the Secretary may not have properly acted in accordance with 38 U.S.C. §§ 7722(c) or (d). See Rodriguez and Andrews, both supra. The Secretary also states that he will not grant equitable relief under 38 U.S.C. § 503 because there was no administrative error on the part of the federal government. This Court has held that it has no jurisdiction to review Secretarial determinations under 38 U.S.C. § 503. See Zimick v. West, 11 Vet.App. 45, 50-51 (1998); Darrow v. Derwinski, 2 Vet.App. 303, 305 (1992) (“Congress has not provided for an appeal of the exercise of the Secretary’s equitable relief authority....”). B. The Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record. 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See Allday v. Brown, 7 Vet.App. 517, 527 (1995); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility, and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, supra. Moreover, “an inadequate record frustrates judicial review.” Ardison v. Brown, 6 Vet.App. 405, 407 (1994). The U.S. Supreme Court has stated: If" }, { "docid": "6869515", "title": "", "text": "regarding the date a formal or informal claim was filed, in order to determine the appropriate effective date for an award of VA benefits, are reviewed by this Court under the “clearly erroneous” standard. See 38 U.S.C. § 7261(a)(4); Stewart v. Brown, 10 Vet.App. 15, 17 (1997); KL v. Brown, 5 Vet.App. 205, 207 (1993); Quarles v. Derwinski, 3 Vet.App. 129, 135 (1992). “ ‘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 a definite and firm conviction that a mistake has been committed.’ ” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). “[T]his Court is not permitted to substitute its judgment for that of the BVA on issues of material fact; if there is a ‘plausible’ basis in the record for the factual determinations of the BVA, ... [the Court] cannot overturn them.” Id. at 53. (a) Unless specifically provided otherwise ..., the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110; see also 38 C.F.R. § 3.400 (1998) (implementing regulation). In general, the effective date of an award of benefits will depend on the date a claim for such benefits was filed. The Board’s failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is remandable error. See 38 U.S.C. § 7104(a); Servello v. Derwinski 3 Vet.App. 196, 198-99 (1992) (citing Gilbert, 1 Vet.App. at 56-57). A claim for VA benefits must be submitted in the form prescribed by the Secretary. 38 U.S.C. § 5101; see also Jones v. West, 136 F.3d 1296, 1299 (Fed.Cir.1998) (“Section 5101 is a" }, { "docid": "19209515", "title": "", "text": "in conflict with, the “one review on appeal to -the Secretary” provision of section 7104(a). III. REMEDY Mr. Padgett seeks reversal of the Board decision based on his argument that the Board could not properly rely on either VA medical opinion, leaving the opinions of Drs. Shaw and Thoburn as the only medical opinions properly before the Board. Although the Court rejects the contention that the Board could not consider the VA medical opinions for any purpose, we nevertheless find reversal appropriate as to the denial of Mr. Padgett’s secondary-service-connected right-hip-disability claim. Additionally, remand is appropriate with regard to his claims for presumptive and direct service connection for his right-hip disability. A. Board Decision as to Secondary Service Connection for Right-Hip Disability will be Reversed Secondary service connection may be granted for any disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2004); see Allen, 7 Vet.App. at 448 (allowing secondary service connection for aggravation of non-service-connected condition by service-connected disability). The Board’s decision regarding the finding of secondary service connection is a finding of fact that the Court reviews under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). See Harder v. Brown, 5 Vet.App. 183, 187 (1993). In this regard, section 7261(a)(4) directs the Court to “reverse or set aside” any “finding of material fact adverse to the claimant ... if the finding is clearly erroneous.” 38 U.S.C. 7261(a)(4). “ ‘A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (emphasis added) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Of course, if the Board’s “ ‘account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it.’ ” Gilbert, 1 Vet.App. at 52 (quoting Anderson v. City of Bessemer" }, { "docid": "19209516", "title": "", "text": "the finding of secondary service connection is a finding of fact that the Court reviews under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). See Harder v. Brown, 5 Vet.App. 183, 187 (1993). In this regard, section 7261(a)(4) directs the Court to “reverse or set aside” any “finding of material fact adverse to the claimant ... if the finding is clearly erroneous.” 38 U.S.C. 7261(a)(4). “ ‘A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (emphasis added) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Of course, if the Board’s “ ‘account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it.’ ” Gilbert, 1 Vet.App. at 52 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). Additionally, when assessing the factual determinations of the Board, the Court is required by 38 U.S.C. § 7261(b)(1) to “take due account” of the application of 38 U.S.C. § 5107(b), the “benefit-of-the-doubt” rule in every case. Under this rule, the Secretary is charged with the duty to consider all information and evidence of record and, when there is an “approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant.” 38 U.S.C. § 5107(b); see also Mariano v. Principi, 17 Vet.App. 305, 313 (2003) (also referring inferentially to benefit-of-therdoubt rule as “equipoise standard”); 38 C.F.R. § 3.102 (2004). Put another way, under the benefit-of-the-doubt rule, “the preponderance of the evidence must be against the claim for benefits to be denied.” Gilbert, 1 Vet.App. at 54; see Robinette v. Brown, 8 Vet.App. 69, 76 (1995) (“the unique eviden-tiary burdens in the VA adjudication system ... permit" }, { "docid": "11141538", "title": "", "text": "84 L.Ed.2d 518 (1985)); see also Mariano v. Principi, 17 Vet.App. 305, 313 (2003). Moreover, the Secretary is required by 38 U.S.C. § 5107(b) to consider all information and lay and medical evidence of record, and, under the section 5107(b) “equipoise standard”, to find for the claimant unless “a fair preponderance of the evidence is against the claim[ant’s position].” Gilbert, 1 Vet.App. at 54-55; see also Mariano, 17 Vet.App. at 313-17 (reversing two BVA findings of fact as “clearly erroneous application^] of the section 5107(b) equipoise standard”). The Board, too, must consider all evidence of record and consider, and discuss in its decision, all “potentially applicable” provisions of law and regulation. Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(a); Charles v. Principi, 16 Vet.App. 370, 373 (2002); Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (per curiam order); Panden v. Derwinski 2 Vet.App. 97, 100 (1992). The Board is also required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; that statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate informed review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Cotuza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39A10 (1994); Gilbert, supra. B. Application of Law to Facts The Board recognized that the veteran had been diagnosed with PTSD and determined that the case turned on whether he had either engaged in combat during service or experienced a verifiable in-service stressor. R. at 5. In determining whether the appellant “engaged in" }, { "docid": "14701157", "title": "", "text": "those that deal with ‘ultimate’ and those that deal with ‘subsidiary’ facts.”). As the Federal Circuit’s opinion in Mayfield made clear, a determination of whether section 5103(a) notification has been met through predecisional communications “turns on what inferences the agency draws from the facts before it,” and therefore, such determinations are squarely within the province of VA. See Mayfield, 444 F.3d at 1335; see also Miller v. Fenton, 474 U.S. 104, 113-14, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). Accordingly, the Court reviews the Board’s determination that a notification communication satisfies VA’s section 5103(a) duty-to-notify requirements under the “clearly erroneous” standard of review. Under the “clearly erroneous” standard of review, the Court may only set aside a finding of material fact when, after reviewing the record as a whole, it is “left with the definite and firm conviction that a mistake has been committed.” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1991) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). When applying this standard, “ ‘[i]f the [Board’s] account of the evidence is plausible in light of the record viewed in its entirety, the [Court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’” Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). Moreover, the Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; that statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as facilitate informed review in this Court. See 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57. (b) Application of Law to Fact Reviewing the record in its entirety, we find that the Board’s conclusion that the May 2001 notification letter satisfied VA’s statutory notification requirements pursuant to 38 U.S.C. § 5103(a) is not clearly erroneous and" }, { "docid": "23585875", "title": "", "text": "all the prescribed factors must be considered by the Under Secretary for Benefits. Ante at 149. The majority contends, however, that consideration may properly be undertaken sub silentio and never written down or disclosed. As we will explain, we do not agree with any such conclusion. However, even if we were to concede the acceptability under § 3.311 of such unwritten, undisclosed consideration by the Under Secretary for Benefits and by inference by the Under Secretary for Health in an advisory medical opinion provided under § 3.311(c)(1), that would not alter the result of the following analysis, a matter that the majority conveniently ignores, under the 1984 Act and requirements established for VA benefits adjudication in title 38 of the U.S. Code. Under 38 U.S.C. § 7104(d)(1), a Board decision must include a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Masors v. Derwinski, 2 Vet.App. 181, 188 (1992); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (quoted supra note 1). To comply with this requirement, eight years of unchallenged Court precedent dictates that the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Abernathy v. Principi 3 Vet.App. 461, 465 (1992); Gilbert, supra. Under 38 U.S.C. § 5104(b)(1), the Secretary has a comparable responsibility to specify, in the notice of a decision of the agency of original jurisdiction (generally an RO), a “statement of the reasons for the decision” in “any case where the Secretary denies a benefit sought”." }, { "docid": "23585876", "title": "", "text": "as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Masors v. Derwinski, 2 Vet.App. 181, 188 (1992); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (quoted supra note 1). To comply with this requirement, eight years of unchallenged Court precedent dictates that the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Abernathy v. Principi 3 Vet.App. 461, 465 (1992); Gilbert, supra. Under 38 U.S.C. § 5104(b)(1), the Secretary has a comparable responsibility to specify, in the notice of a decision of the agency of original jurisdiction (generally an RO), a “statement of the reasons for the decision” in “any case where the Secretary denies a benefit sought”. 38 U.S.C. § 5104(a), (b)(1); see generally Crippen v. Brown, 9 Vet.App. 412, 420 (1996) (outlining history of 1989 enactment of section 5104(b), effective in February 1990). It is thus axiomatic that section 7104(d)(1) requires the Board to discuss specifically, in the adjudication of a case, the application of all “factors” that VA is required by law and regulation to consider in adjudication of a claim. See Ridings v. Brown, 6 Vet.App. 544, 546 (1994) (finding reasons-or-bases error and remanding where Board failed to discuss all elements applicable to determination whether recovery of overpayment would be against equity and good conscience under 38 C.F.R. § 1.965(a)); Cullen v. Brown, 5 Vet.App. 510, 512 (1993) (BVA decision “not capable of being judicially reviewed due to its failure to provide adequate ‘reasons or bases’ for its determination that recovery of the overpayment [under 38 C.F.R. § 1.965(a) ] of disability compensation benefits would not violate the principles of equity and good conscience”). Indeed, the Court in Gilbert, itself, remanded for the Board to explain why the evidence" }, { "docid": "18498626", "title": "", "text": "failed to provide adequate reasons or bases for its decision to deny a total rating based on its finding that appellant was capable of substantially gainful employment. Appellant, however, requests further relief based on the merits of his case. The issue of inadequate “reasons or bases” for the BVA’s conclusion is not dispositive of this case; therefore, the Court proceeds to decide the merits of appellant’s claim on other grounds. When reviewing factual determinations made by the BVA, the Court’s scope of review is governed by 38 U.S.C. § 7261(a)(4) (formerly § 4061), which states that: In any action brought under this chapter, the Court of Veterans Appeals, to the extent necessary to its decision and when presented, shall— (4) in the case of a finding of material fact made in reaching a decision in a case before the Department with respect to benefits under laws administered by the Secretary, hold unlawful and set aside such finding if the finding is clearly erroneous. A factual finding “is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Brannon v. Derwinski, 1 Vet.App. 314, 317 (1991); Spencer v. Derwinski, 1 Vet.App. 125, 126-27 (1991); Gilbert, 1 Vet.App. at 52-53. If the [factfinder]’s account of the evidence is plausible in light of the record viewed in its entirety, the [reviewing court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Gilbert, 1 Vet.App. at 52 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985)). The Court must now determine, under the standard announced by the Supreme Court and in Gilbert, whether the BVA’s factual findings are clearly erroneous. The veteran’s" }, { "docid": "11968237", "title": "", "text": "entitled to an effective date of October 1978. She can receive an earlier effective date only if there was clear and unmistakable error (CUE) in one of the final RO decisions or if one of the prior RO decisions was not final. She contends that when the RO previously decided her case, it did not consider all the evidence then of record. The BVA is required to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Masors v. Derwinski, 2 Vet.App. 181, 188 (1992); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board’s statement of reasons or bases must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); Abernathy v. Principi, 3 Vet.App. 461, 465 (1992); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet.App. 164, 169 (1991); Gilbert, supra. The Court reviews BVA factfinding under a “clearly erroneous” standard; “if there is a ‘plausible’ basis in the record for the factual determinations of the BVA, ... [the Court] cannot overturn them”. Gilbert, 1 Vet.App. at 53; 38 U.S.C. § 7261(a)(4). B. CUE Pursuant to 38 C.F.R. § 3.105(a) (1994), “[pjrevious determinations which are final and binding ... will be accepted as correct in the absence of [CUE].” A CUE claim is a collateral attack on a final RO decision. See Smith (William) v. Brown, 35 F.3d 1516, 1527 (Fed.Cir.1994). In order for there to be a valid claim of CUE, there must have been an error in the prior adjudication of a claim based on the record then before" }, { "docid": "22030885", "title": "", "text": "have been manifestly different but for the alleged error”. Fugo v. Brown, 6 Vet.App. 40, 44 (1993). On appeal of a BVA determination that there was no CUE in a prior RO decision, the Court’s review is limited to determining whether the ’ Board’s conclusion is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (38 U.S.C. § 7261(a)(3)(A)) and whether it is supported by an adequate statement of “reasons or bases” (38 U.S.C. § 7104(d)(1)). See Eddy v. Brown, 9 Vet.App. 52, 57 (1996); Glynn v. Brown, 6 Vet.App. 523, 530-31 (1994); Damrel v. Brown, 6 Vet.App. 242, 246 (1994); Russell, 3 Vet.App. at 315. The Board is required by 38 U.S.C. § 7104(d)(1) to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record, including its denial of any assistance specifically sought by the claimant. See Godwin v. Derwinski, 1 Vet.App. 419, 427 (1991). The statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Masors v. Derwinski, 2 Vet.App. 181, 188 (1992); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of all material evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed.Cir.1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, supra. The veteran asserts CUE in prior final RO decisions of May 1947, June 1949, September 1952, October 1982, and December 1983. R. at 191-92, 235; see also Brief (Br.) at 17. He asserts, in effect, that the evidence of record before the RO at the time of each of these prior decisions, specifically “the April 1947 and July 1952 VA examinations, established through[-]and[-]through" }, { "docid": "7151324", "title": "", "text": "of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; that statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, supra. In the instant case, the appellant argues that the Board committed error when it found that his mother’s April 1979 statement to the Probate Court was not new and material evidence showing that he had exhibited paranoid schizophrenia during service or within the one-year presumption period. Br. at 18-21. In the November 2000 BVA decision, the Board concluded that neither the appellant’s mother’s April 1979 statement nor her statements made during the course of the claim could “serve as a basis upon which to reopen this claim” because there was no indication that the appellant’s mother was a medical professional. R. at 7. Under 38 C.F.R. § 3.307(c) (1999), “characteristic manifestations of the disease to the required degree” may be demonstrated “by acceptable medical or lay evidence” (emphasis added). The Board failed to provide an adequate statement of reasons or bases for its determination that the appellant’s mother’s statements did not constitute new and material evidence to reopen the appellant’s claim for service connection for an acquired psychiatric disorder. The Board stated: The only possible evidence that could be construed as new and material are the photocopied records from the probate court in the state of Michigan dated in April 1979. As noted above, the veteran’s mother then stated that the" }, { "docid": "15814744", "title": "", "text": "evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed.Cir.2000) (“[o]n factual matters, the findings of the BVA may be overturned by the Court of Appeals for Veterans Claims only if they are clearly erroneous”); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting U.S. Gypsum Co.). In determining whether a finding is clearly erroneous and should be overturned, “this Court is not permitted to substitute its judgment for that of the BVA on issues of material fact; if there is a ‘plausible’ basis in the record for the factual determinations of the BVA ..., [the Court] cannot overturn them.” Gilbert, 1 Vet.App. at 53. Also, the Court has the authority under 38 U.S.C. § 7252(a) to reverse Board decisions “as appropriate”. In addition, the Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 57. To comply with this requirement, the Board must analyze the credibil ity and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Gilbert, supra. 2. Board’s finding that veteran “remains employed”. The Board’s decision to deny the veteran a TDIU rating rested on two findings of fact: First, the BVA found that “the veteran ... has not lost his job and remains employed”. R. at" }, { "docid": "9831599", "title": "", "text": "of all evidence and material of record”); cf. Quarles v. Derwinski 3 Vet.App. 129, 134-36 (1992) (Board based effective date on November 1984 letter from doctor, but, because November 1984 letter included and was based upon October 1984 examination, and because that examination occurred within one year prior to filing of claim, Board’s setting of November, rather than October, 1984 effective date was clearly erroneous); cf. also Evans v. Brown, 9 Vet.App. 273, 283 (1996) (in claim to reopen on the basis of new and material evidence, if evidence is “new” and “probative”, then VA must determine “in light of all the evidence of record, [whether] there [is] a reasonable possibility that the outcome of the claim on the merits would be changed” (emphasis added)). Thus, the BVA was required to consider the 1989 hearing testimony in ascertaining the effective date for the appellant’s rating. The Board is required to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable the claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Simon v. Derwinski 2 Vet.App. 621, 622 (1992); Masors v. Derwinski 2 Vet.App. 181, 188 (1992); Gilbert v. Derwinski 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Abernathy v. Principi 3 Vet.App. 461, 465 (1992); Gilbert, supra. b. Applicability of Smith opinion: The Secretary identifies the issue surrounding the BVA’s nonconsideration of the veteran’s 1989 hearing testimony as one of CUE under 38 C.F.R. § 3.105(a) (1996), which provides in pertinent part: “Where evidence establishes [CUE]," } ]

[ { "docid": "22747185", "title": "", "text": "but it was vetoed by Governor Reagan. In light of this history, we think it plain that no reasonable interpretation of § 2600 (4) would avoid or modify the federal constitutional question decided below. Moreover, we are mindful of the high cost of abstention when the federal constitutional challenge concerns facial repugnance to the First Amendment. Zwickler v. Koota, 389 U. S. 241, 252 (1967); Baggett v. Bullitt, 377 U. S., at 379. We therefore proceed to the merits. A Traditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining-internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptibly of resolution by decree. Most require expertise, comprehensive' planning, and the commitment of resources, all of which are peculiarly within .the province. of the legislative and executive branches of .''government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities. , But a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or státe institution. When a .prison regulation or practice offends á fundamental constitutional guarantee, federal courts will discharge their duty to protect consti tutional rights. Johnson v. Avery, 393" } ]

[ { "docid": "23378199", "title": "", "text": "to justify abstention was the “susceptibility of a state statute of a construction by the state courts that would avoid or modify the constitutional question,” Zwickler v. Koota, 389 U.S. 241, 248-249, 88 S.Ct. 391, 396, 19 L.Ed.2d 444 (1967), or as Justice Harlan put it, “cases in which the federal constitutional issue might be mooted or ‘presented in a different posture’ by a state court determination of pertinent state law.” Id. at 256, 88 S.Ct. at 400. See also Harman v. Forssenius, 380 U.S. 528, 534-537, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Harrison v. NAACP, 360 U. S. 167, 177, 79 S.Ct. 1025, 1030, 3 L.Ed. 2d 1152 (1959) (“This principle does not, of course, involve the abdication of federal jurisdiction, but only the postponement of its exercise,” Harlan, J.). Each of these cases involved federal constitutional claims which were inextricably intertwined with the operation of the challenged state statutes. Moreover, the Court during the 1960’s showed a marked trend back to the teaching of Chief Justice Marshall. The Court twice has cited with approval the statement of Judge Murrah in Stapleton v. Mitchell, 60 F.Supp. 51, 55 (D.Kan.), appeal dismissed per stipulation, Mitchell v. McElroy, 326 U.S. 690, 66 S.Ct. 172, 90 L.Ed. 406 (1945): We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum. Zwickler v. Koota, 389 U.S. at 248, 88 S.Ct. at 395; McNeese v. Board of Education, 373 U.S. 668, 674 n. 6, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963). But, the last two Terms of the Court have witnessed the rejuvenation of the full implications of the Pullman doctrine. In Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970), the Court reversed a three-judge district court which had enjoined the enforcement of an Alaskan statute and regulations governing the issuance of licenses for commercial fishing as violative of" }, { "docid": "18849985", "title": "", "text": "the hearing and their testimony will be properly identified below. . The Draft Standards of the Federal Department of Justice and the American Medical Association Standards for Jails. Allusion has been made by various witnesses to other standards and the American Correctional Standards and American Bar Association Standards have also been checked by the Court. . Law 116 of July 22, 1974. . The right of convicted persons to humane treatment is not eschewed by reason of their confinement. They are guaranteed the provision of life’s basic needs for the period of their incarceration. Bowring v. Godwin, 551 F.2d 44 (4 Cir., 1977). . The Court is aware that substantial deference to prison officials is required. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Procunier v. Martínez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977). But this policy cannot interfere with the duty to protect constitutional rights. Procunier v. Martínez, supra; Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). Government entities have no discretion to violate the Constitution. Owen v. City of Independence, Missouri, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Once a court finds that an Eighth Amendment violation exists, it is obligated to remedy the situation. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Battle v. Anderson, 564 F.2d 388, 392-393 (10 Cir., 1977); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Smith v. Sullivan, 611 F.2d 1039, 1044 (5 Cir., 1980); Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Ramos v. Lamm, 485 F.Supp. 122 (D.Colo., 1979). . Testimony concerning the first eight of these institutions will be reviewed in these Findings of Fact. The Court compelled the parties to present evidence concerning conditions in the several institutions separately, in case certain remedies were to be ordered against specific institutions, or, in the case the Court were to find" }, { "docid": "954785", "title": "", "text": "as static but rather as drawing “its meaning from 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). Indeed, the touchstone of the Eighth Amendment is “nothing less than the dignity of man.” Id. at 100, 78 S.Ct. at 597. The amendment thus prohibits not merely physically barbarous punishment but any penal measures “that transgress today’s ‘broad and idealistic concepts of dignity, civilized standards, humanity and decency.’ ” Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522 (1978) (quoting Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976)). The Supreme Court has recently stated that the infliction of unnecessary suffering is inconsistent with contemporary standards of decency and therefore proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. at 102-03, 97 S.Ct. at 290. In determining whether the conditions of which plaintiffs complain constitute cruel and unusual punishment, this court, like others before it, must be guided by the fact that the Eighth Amendment is intended to protect inmates from an environment where degeneration is probable and self-improvement unlikely because of conditions which inflict needless physical or mental suffering. Battle v. Anderson, 564 F.2d at 392-93; Ramos v. Lamm, 485 F.Supp. at 131-32. In several recent decisions, the Supreme Court has reiterated the long-standing policy of the federal courts to defer to the judgment of penal officials in matters of prison administration. Bell v. Wolfish, 441 U.S. at 547-8, 99 S.Ct. at 1878-79; Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 128, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977); Procunier v. Martinez, 416 U.S. 396, 404-07, 94 S.Ct. 1800, 1807-08, 40 L.Ed.2d 224 (1974). Nevertheless, the court has also stated that “ ... a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to" }, { "docid": "1687921", "title": "", "text": "policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights. 416 U.S. at 405-06, 94 S.Ct. at 1807-08 (additional citation omitted). Dawson, 527 F.Supp. at 1280-81. In the instant case, in keeping with this court’s limited role in this type of lawsuit, the court provided the parties ample opportunity before and during trial to resolve this matter. Specifically, the court wished to avoid encroaching upon the administrative authority of the officials of the Knox County Jail system. During the course of those discussions, the court was left with the firm impression that the State of Tennessee and its officials simply had no immediate options available in light of Judge Higgins’ Order to alleviate the overcrowded conditions at the Jail caused primarily by housing state prisoners in these facilities. Thus, the court will now examine the appropriate constitutional standards and apply those standards to the facilities in question. B. Constitutional Standards 1. Convicted Inmates The Eighth Amendment to the United States Constitution imposes the constitutional limitation upon punishments in three words: they cannot be “cruel and unusual.” Rhodes v. Chapman, 452 U.S. 337, 345, 101 S.Ct. 2392, 2398, 69 L.Ed.2d 59 (1981). It is unquestioned that “[c]on-finement in a prison ... is a form of punishment subject to scrutiny under the Eighth Amendment standards.” Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 2570, 57 L.Ed.2d 522 (1978). No static test has been developed for determining violations of the Eighth Amendment; rather, the Supreme Court has interpreted the prohibition in the Eighth Amendment “in a flexible and dynamic manner,” Gregg v. Georgia, 428 U.S. 153, 171, 96 S.Ct. 2909, 2924, 49 L.Ed.2d 859 (1976) (joint opinion), and has extended the Eighth Amendment’s reach beyond the barbarous physical punishments at issue in the courts’ earliest cases. See Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879); In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34" }, { "docid": "9404292", "title": "", "text": "proceeding, filed subsequent to this suit, attacking the validity of the Millage Rollback Act. We take up defendant’s last argument first. We find no special circumstances in this case that would persuade us to apply the doctrine of abstention. The fact that a state remedy is available is not a valid basis for federal court abstention. Monroe v. Pape, 1961, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492; McNeese v. Board of Education, 1963, 373 U.S. 668, 671, 83 S.Ct. 1433, 10 L.Ed.2d 622; Zwickler v. Koota, 1967, 389 U.S. 241, 251, 88 S.Ct. 391, 19 L.Ed.2d 444. There can be no doubt in this case about what the statute means. It defies any interpretation that would or could avoid or modify the constitutional question. In such a case it is the duty of a federal court to exercise its jurisdiction. Zwickler v. Koota, supra; Harman v. Forssenius, 1965, 380 U.S. 528, 534-535, 85 S.Ct. 1177, 14 L.Ed.2d 50; cf. Reetz v. Bozanich, 1970, 397 U.S. 88, 91, 90 S.Ct. 788, 25 L.Ed.2d 73, 76; Wright v. City of Montgomery, Alabama, 5 Cir. 1969, 406 F.2d 867, 871. Nor does the fact that the instant case involves a state tax scheme bring it within the proscription of 28 U.S.C.A. § 1341 or the abstention doctrine of Great Lakes Dredge & Dry Dock Co. v. Huffman, 1943, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407. Section 1341 prohibits federal courts from enjoining the assessment, levy or collection of any tax under state law where the state law provides an efficient remedy; Great Lakes requires abstention where only declaratory relief is sought with regard to a state statute relating to the assessment, levy or collection of taxes. The considerations underlying Section 1341 and the Great Lakes abstention doctrine are inapplicable here because the plaintiffs in the instant case are not attempting to strike down an assessment and collection scheme but, on the contrary, are attempting to obtain the right to have such a scheme. Turning now to the defenses asserted, it may be that in the abstract “the difference" }, { "docid": "13837060", "title": "", "text": "against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism.... Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). Accord, Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 2400 n.13, 69 L.Ed.2d 59 (1981); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Bell v. Wolfish, 441 U.S. 520, 531, 99 S.Ct. 1861, 1870, 60 L.Ed.2d 447 (1979); Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981) (en banc). (4) But when constitutional deprivations are established, the federal court is bound to discharge its duty to protect constitutional rights. Procunier v. Martinez, supra; Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Smith v. Sullivan, 611 F.2d 1039 (5th Cir. 1980). “[T]he Constitution does not stop at the prison gate, but rather inures to the benefit of all, even to those citizens behind prison walls.” Battle v. Anderson, 447 F.Supp. 516, 524 (W.D.Okl., 1977). Although the plaintiffs attacked various facets of the Ouachita Parish Jail which allegedly violated different constitutional provisions, the primary source of attack springs from the Eighth Amendment’s prohibition of cruel and unusual punishment. (5) It has been both a settled and first principle of the Eighth Amendment that penal measures are constitutionally repugnant if incompatible with the “evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles," }, { "docid": "22379281", "title": "", "text": "those sovereign entities. See Battle v. Anderson, 564 F.2d 388, 391-92 (10th Cir.); Bethea v. Crouse, 417 F.2d 504, 505-06 (10th Cir.); see also Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224; Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S.Ct. 1827, 1837, 36 L.Ed.2d 439. We cannot agree, however, with the State’s argument here that the district court abused its discretion in refusing to abstain in view of the serious violations alleged of basic rights under the First, Eighth, and Fourteenth Amendments, and the substantial evidence later offered on these claims. See, e. g., Campbell v. McGruder, 580 F.2d 521, 527 (D.C. Cir.); and see Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 1886, 60 L.Ed.2d 447. “The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.” Colorado River Water Cons. Dist. v. United States, supra, 424 U.S. at 813, 96 S.Ct. at 1244. Only in “exceptional circumstances” should a federal plaintiff be ordered to repair to the state court. Id.; accord, Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (abstention appropriate “only in narrowly limited special circumstances”). In reviewing the district court’s refusal to abstain, we note that the Supreme Court has “confined the circumstances appropriate for abstention to three general categories,” none of which apply to justify refusal to hear this constitutional case. Colorado River, supra, 424 U.S. at 814, 96 S.Ct. at 1244; see generally 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §§ 4241-55 (1978). This is not a case where the federal constitutional issues “might be mooted or presented in a different posture by a state court determination of pertinent state law.” Colorado River Water Cons. Dist. v. United States, supra, 424 U.S. at 814, 96 S.Ct. at 1244; Railroad Comm’n v. Pullman Co., supra, 312 U.S. at 500-01, 61 S.Ct. at 645; see Manney v." }, { "docid": "22379286", "title": "", "text": "S.Ct. 2371, 2377, 60 L.Ed.2d 994. Here there is no pending state proceeding initiated by the state. There are only pending actions in the state court with a number of similar issues, in which the plaintiff class might have intervened. “Generally, as between state and federal courts, the rule is that ‘the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction . . . .’ ” Colorado River, supra, 424 U.S. at 817, 96 S.Ct. at 1246; accord, Will v. Calvert Fire Ins. Co., supra, 437 U.S. at 662 (plurality) and 670, 98 S.Ct. at 2557 and 2561 (Brennan, J., dissenting). Consequently, the district court correctly determined that abstention under the Younger line of cases was inappropriate. See Ramos v. Lamm, supra, 485 F.Supp. at 174. In sum, we conclude there was no error or abuse of discretion by the district court in declining to abstain from hearing this constitutional case and the substantial constitutional claims asserted. As the Supreme Court noted in Procunier v. Martinez, supra, 416 U.S. at 405-06, 94 S.Ct. at 1807: [A] policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts, will discharge their duty to protect constitutional rights. Like the trial judge, we are moved by the words of Judge Murrah from Stapleton v. Mitchell, 60 F.Supp. 51, 55 (D.Kan.), words recalled by the Supreme Court in Zwickler v. Koota, supra, 389 U.S. at 248, 88 S.Ct. at 395, in describing the duty of federal courts “to guard, enforce, and protect every right granted or secured by the Constitution of the United States”: We yet like to believe that whenever the Federal Courts sit, human rights, under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum. Ill" }, { "docid": "20149339", "title": "", "text": "S.Ct. 2303, 73 L.Ed.2d 1306 (1982). Because there are no genuine issues of material fact, this Court is of the opinion that Defendants’ Motion for Summary Judgment should be granted and judgment should be entered in favor of the Defendants. IV. Findings of Fact and Conclusions of Law Federal courts are normally reluctant to interfere with matters of internal prison administration. Hooks v. Kelley, 463 F.2d 1210, 1211 (5th Cir.1972); see also Newman v. Alabama, 683 F.2d 1312, 1320 (11th Cir.1982). As the Supreme Court stated in Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979) (citations omitted): [T]he problems that arise in the day-today operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security- In recognition of the judiciary’s deference, the Supreme Court has repeatedly stated: Such considerations [of prison administration] are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters. Bell v. Wolfish, 441 U.S. at 547-48, 99 S.Ct. at 1878-79, quoting Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974); see Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 128, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977). Of course, a policy of judicial restraint does not include failure to take cognizance of prisoners’ valid constitutional claims. Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). “When a prison regulation or practice offends a fundamental constitutional guaran tee, federal courts will discharge their duty to protect constitutional rights.” Id. at 405-06, 94 S.Ct. at 1807-08. In the setting of a prison, there must be “mutual accommodation” between the penal institution’s legitimate needs and goals and the prisoner’s" }, { "docid": "22442652", "title": "", "text": "L.Ed.2d 444. It is certain, however, that none authorizes abstention when state law is clear simply because the state has a general interest in the subject matter of the controversy, whether it is schools or debt collection. See McNeese, supra. . There can be no doubt that under Tex. Rev.Civ.Stat.Ann. Art. 5238a the claimed defect — the power of the landlord to seize the property of the tenant without any hearing or other proceeding — is present since the statute provides that “said operator shall have the right to take and retain possession of such baggage and other property until the amount of such unpaid rent is paid.” . The rule has recently been well articulated by Judge Dyer for a 28 U.S.C.A. § 2281 three-Judge Court: “The fact that a state remedy is available is not a valid basis for federal court abstention. Monroe v. Pape, 1961, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed. 2d 492; McNeese v. Board of Education, 1963, 373 U.S. 668, 671, 83 S.Ct. 1433, 10 L.Ed.2d 622; Zwickler v. Koota, 1967, 389 U.S. 241, 251, 88 S.Ct. 391, 19 L.Ed.2d 444. There can be no doubt in this case about what the statute means. It defies any interpretation that would or could avoid or modify the constitutional question. In such a case it is the duty of a federal court to exercise its jurisdiction. Zwickler v. Koota, supra; Harman v. Forssenius, 1965, 380 U.S. 528, 534-535, 85 S.Ct. 1177, 14 L.Ed.2d 50; cf. Reetz v. Bozanich, 1970, 397 U.S. 88, 91, 90 S.Ct. 788, 25 L.Ed .2d 73, 76; Wright v. City of Montgomery, Alabama, 5 Cir., 1969, 406 F. 2d 867, 871.” Hargrave v. Kirk, M.D.Fla., 1970, 313 F. Supp. 944. . In Reetz the Court quoted with approval from its opinion in City of Meridian v. Southern Bell Tel. & Tel. Co., 1959, 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562: “Proper exercise of federal jurisdiction requires that controversies involving unsettled questions of state law be decided in the state tribunals preliminary to a federal court’s consideration of the" }, { "docid": "6939772", "title": "", "text": "of law. II. Conclusions of Law — Generally A. The Function of Constitutional Review The federal judiciary has traditionally followed a policy of substantial deference to those persons charged with the administration of state prisons and jails. This deference, frequently characterized as the “hands-off” policy, is premised upon notions of federalism and constitutes a recognition of the nonexpertise of the judiciary in the daily administration of a jail or prison. As stated in Bounds v. Smith, 430 U.S. 817, 832, 97 S.Ct. 1491, 1500, 52 L.Ed.2d 72 (1977), the federal courts do “not ‘sit as co-administrators of state prisons.’ ” The hands-off policy has not, however, been applied as an absolute in recent years. Beginning with the Supreme Court’s decisions in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), and Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964), it was established that constitutional deprivations occurring within the confines of a state prison or jail are actionable pursuant to 42 U.S.C. § 1983. The deference counseled by the hands-off policy has thus been merged with the federal courts’ duty to address and, when appropriate, vindicate the constitutional rights of prisoners. This is reflected in Mr. Justice Rehnquist’s admonition in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), that: [A] policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights. 416 U.S. at 405-06, 94 S.Ct. at 1807-08; see also Bolding v. Holshouser, 575 F.2d 461, 466 (4th Cir. 1978), cert. denied, 439 U.S. 837, 99 S.Ct. 121, 58 L.Ed.2d 133 (1978). The tradition of deference has, nevertheless, been manifested as an integral component of constitutional analysis in recent decisions of the United States Supreme Court. Thus, in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Court held that constitutional review of the conditions of confinement of" }, { "docid": "18597357", "title": "", "text": "Blackwell, 774 F.2d 338, 343 (8th Cir.1985). Judicial deference “does not insulate from review actions taken in bad faith and for no legitimate purpose * * Whitley v. Albers, --- U.S. ---, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986). Moreover, “a policy of judicial restraint cannot encompass any failure to take cognizance in valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect the constitutional rights.” Procunier v. Martinez, 416 U.S. 396, 405-06, 94 S.Ct. 1800, 1807-08, 40 L.Ed.2d 224 (1974). As the Supreme Court stated in Wolff v. McDonnell, 418 U.S. at 556, 94 S.Ct. at 1846, there must be a “mutual accommodation” between the important institutional objective of security and the constitutionally protected rights of prisoners. In this light, I am concerned about this court’s “apparent willingness to substitute the rhetoric of judicial deference for meaningful scrutiny of constitutional claims in the prison setting.” Block v. Rutherford, 468 U.S. 576, 593, 104 S.Ct. 3227, 3236, 82 L.Ed.2d 438 (1984) (Blackmun, J., concurring in the judgment). “[Cjareless invocations of ‘deference’ run the risk of returning us to the passivity of several decades ago, when the then-prevailing barbarism and squalor of many prisons were met with a judicial blind eye and a ‘hands off’ approach.” Id. at 594, 104 S.Ct. at 3236. The Arkansas prison cases can well demonstrate the result of this sort of judicial attitude. See Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) and cases cited therein. As this court has previously recognized, in certain cases “judicial intervention is indispensable if constitutional dictates — not to mention considerations of basic humanity — are to be observed in the prisons.” Martin v. White, 742 F.2d 469, 473 (8th Cir.1984) (quoting Rhodes v. Chapman, 452 U.S. 337, 354, 101 S.Ct. 2392, 2403, 69 L.Ed.2d 59 (1981) (Brennan, J., concurring in judgment) (emphasis in original). This represents one of those cases. III. In its concluding paragraph, the majority implies that this case concerns only" }, { "docid": "22379287", "title": "", "text": "noted in Procunier v. Martinez, supra, 416 U.S. at 405-06, 94 S.Ct. at 1807: [A] policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts, will discharge their duty to protect constitutional rights. Like the trial judge, we are moved by the words of Judge Murrah from Stapleton v. Mitchell, 60 F.Supp. 51, 55 (D.Kan.), words recalled by the Supreme Court in Zwickler v. Koota, supra, 389 U.S. at 248, 88 S.Ct. at 395, in describing the duty of federal courts “to guard, enforce, and protect every right granted or secured by the Constitution of the United States”: We yet like to believe that whenever the Federal Courts sit, human rights, under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum. Ill The Eighth Amendment claims In a bifurcated argument the State, supported by the Colorado General Assembly as amicus, challenges the district court’s ultimate finding that the constitutional rights of the plaintiff class have been violated as a result of the conditions of confinement at Old Max. Their general line of argument is that (1) the trial court failed to use the correct constitutional standard in assessing the Eighth Amendment claims, and (2) the evidence, measured by the correct standard, “is insufficient to support the trial court’s finding that the conditions of confinement . constitute cruel and unusual punishment.” See Brief of Appellant at 25, 34; Brief of Amicus Curiae at 13-14. We will consider the constitutional standard to be applied to the Eighth Amendment claims first. Then we will analyze the more specific challenges to the trial court’s findings leading to its conclusion that the State has violated the constitutional guarantee. A. The constitutional standard In Battle v. Anderson, supra, 564 F.2d at 393, we stated that “the Supreme Court has not wavered in its" }, { "docid": "954786", "title": "", "text": "must be guided by the fact that the Eighth Amendment is intended to protect inmates from an environment where degeneration is probable and self-improvement unlikely because of conditions which inflict needless physical or mental suffering. Battle v. Anderson, 564 F.2d at 392-93; Ramos v. Lamm, 485 F.Supp. at 131-32. In several recent decisions, the Supreme Court has reiterated the long-standing policy of the federal courts to defer to the judgment of penal officials in matters of prison administration. Bell v. Wolfish, 441 U.S. at 547-8, 99 S.Ct. at 1878-79; Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 128, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977); Procunier v. Martinez, 416 U.S. 396, 404-07, 94 S.Ct. 1800, 1807-08, 40 L.Ed.2d 224 (1974). Nevertheless, the court has also stated that “ ... a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.” Procunier v. Martinez, 416 U.S. at 405-06, 94 S.Ct. at 1807-08. While neither invited nor solicited, constitutional issues are properly before the court and this court may not turn a deaf ear to them. The Supreme Court has never addressed the question of under what circumstances overcrowded conditions constitute cruel and unusual punishment. The Court’s decision in Bell v. Wolfish, supra, that the Eighth Amendment is not violated by double-celling of pretrial detainees for no more than 60 days is not controlling here. The institution whose conditions were challenged in Wolfish differs significantly from OSP, the Annex, and OSCI. The latter are institutions of long-term confinement, at which the mean time served is 24 months. As the Supreme Court noted in Hutto v. Finney, supra, a “filthy, overcrowded cell and a diet of ‘grue’ might be tolerable for a few days and intolerably cruel for weeks or months.” 437 U.S. at 686-87, 98 S.Ct. at 2572. As neither the Supreme Court nor the Ninth Circuit has defined the contours of unconstitutional overcrowding" }, { "docid": "10068511", "title": "", "text": "740 F.2d 432, 438 (6th Cir.1984). In my order, I have attempted to abide by the restraints imposed by Kendrick, and by the precepts of comity and federalism so often noted in similar cases. See, State of Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 695-96, 99 S.Ct. 3055, 3079, 61 L.Ed.2d 823 (1979); Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Milliken v. Bradley, 433 U.S. 267, 280-81, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971); 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). I have also attempted to utilize the “healthy sense of realism” noted in Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974), by deferring, wherever possible, to the judgment of prison administrators, and by retaining, to the largest degree possible, their discretion to control matters of internal discipline. See also, Bell v. Wolfish, 441 U.S. 520, 548, 99 S.Ct. 1861, 1879, 60 L.Ed.2d 447 (1979); Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S.Ct. 1827, 1837, 36 L.Ed.2d 439 (1973); Ruiz v. Estelle, 679 F.2d 1115, 1145-1146 (5th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983). Comity, federalism and appropriate deference to prison administrators notwithstanding, it remains this Court’s duty to devise an order which will promptly and effectively remedy the constitutional inadequacies noted in my opinion of August 10, 1987. “It is fundamental that the federal forum, as the ultimate guardian of constitutional rights, possesses the authority to implement whatever remedy is necessary to rectify constitutionally infirm practices, policies or conduct.” Kendrick, 740 F.2d at 437. See also, Hutto v. Finney, 437 U.S. 678, 688 note 9, 98 S.Ct. 2565, 2572 note 9, 57 L.Ed.2d 522 (1979) (“Once invoked, ‘the scope of a district court’s equitable power to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies’ ”) (quoting," }, { "docid": "11880488", "title": "", "text": "In re Ellery C., 32 N.Y.2d 588, 347 N.Y.S.2d 51, 300 N.E.2d 424 (1973), the district court found that the state courts are in the process of defining a right to treatment, yet unclear, that might be construed to obviate the need for federal constitutional determination. Moreover, the court abstained across-the-board from considering the plaintiffs’ constitutional claims, thereby implicitly denying their request for the convening of a three-judge statutory court to hear various constitutional contentions. See Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962). DISCUSSION Abstention It is a pillar of federal jurisdiction that one having a bona fide claim is normally entitled as a matter of right to have the claim adjudicated by a federal tribunal and that this right may not be defeated by relegating the matter to the state court or by requiring the plaintiff to exhaust state remedies. McNeese v. Board of Education for Com. Unit School District 187, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). The federal courts have the duty “to guard, enforce, and protect every right granted or secured by the Constitution of the United States . Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542 (1884). This duty was summarized years ago by the late Judge Alfred P. Murrah in a statement .that has been repeatedly quoted with approval by the Supreme Court: “We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum.” Stapleton v. Mitchell, 60 F.Supp. 51, 55 (D.Kan.1945), quoted by Supreme Court in Zwickler v. Koota, supra, 389 U.S. at 248, 88 S.Ct. 391, and McNeese v. Board of Education, supra, 373 U.S. at 674 n. 6, 83 S.Ct. 1433. This jurisdictional precept has been repeatedly recognized as carrying special force" }, { "docid": "747779", "title": "", "text": "from the evolving standards of decency that mark the progress of a maturing society.’ Trop v. Dulles, 356 U.S. 86, 100-101 [78 S.Ct. 590, 597-98, 2 L.Ed.2d 596] (1958) (footnote omitted). The amendment prohibits penalties ‘that transgress today’s “broad and idealistic concept of dignity, civilized standards, humanity, and decency.” ’ Hutto v. Finney, 437 U.S. 678, 685 [98 S.Ct. 2565, 2571, 57 L.Ed.2d 522] (1978) quoting Estelle v. Gamble, 429 U.S. 97, 102 [97 S.Ct. 285, 290, 50 L.Ed.2d 251] (1976); Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1966).” The Eighth Circuit also noted in Campbell that prison conditions for unconvicted persons are to be judged against the “due process standard of the Fifth and Fourteenth Amendments.” (citing Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). Further, the Campbell decision makes clear that conditions within a penal institution which are unconstitutional for convicted persons under Eighth Amendment review are likewise an abridgement of the due process guarantees afforded unconvicted persons. Campbell v. Cauthorn, supra, at p. 505; see also, Detainees of Brooklyn House of Detention for Men v. Malcoln, 520 F.2d 392, 398 (2nd Cir. 1975); and Inmates of Allegheny City, Jail v. Pierce, 612 F.2d 754, 762 (3rd Cir. 1979). Prisoners are also afforded other constitutional guarantees. For instance, prisoners possess First Amendment protection for speech and religious practices, see Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972), and due process and equal protection rights under the Fourteenth Amendment, see Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968), among others. See Generally, Bell v. Wolfish, supra, 99 S.Ct. at 1877. Nonetheless, it is axiomatic that a federal court’s review of the conditions within a state penal institution must be limited solely to those conditions which result in constitutional deprivations. This Court can intervene" }, { "docid": "6939773", "title": "", "text": "by the hands-off policy has thus been merged with the federal courts’ duty to address and, when appropriate, vindicate the constitutional rights of prisoners. This is reflected in Mr. Justice Rehnquist’s admonition in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), that: [A] policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights. 416 U.S. at 405-06, 94 S.Ct. at 1807-08; see also Bolding v. Holshouser, 575 F.2d 461, 466 (4th Cir. 1978), cert. denied, 439 U.S. 837, 99 S.Ct. 121, 58 L.Ed.2d 133 (1978). The tradition of deference has, nevertheless, been manifested as an integral component of constitutional analysis in recent decisions of the United States Supreme Court. Thus, in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Court held that constitutional review of the conditions of confinement of pre-trial detainees must rest on a determination of whether the conditions reflect punitive intent on the part of prison administrators. Likewise, in Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), the Court held that a prisoner did not have a constitutionally protected liberty interest in remaining at a less restrictive prison absent a state law or practice conditioning the transfer on proof of serious misconduct. The Court recognized in Meachum that prison transfers are a matter of administrative judgment and not of constitutional concern unless a prisoner’s incarceration in a particular prison is embodied as an entitlement which, by state law, may not be withdrawn at the unabridged discretion of prison personnel. Even when a prisoner’s fundamental constitutional rights are infringed by the action of prison administrators, such action may withstand constitutional challenge if the infringement is reasonably related to a legitimate penological objective. See, e. g., Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125, 97 S.Ct. 2532, 2537-38, 53 L.Ed.2d 629 (1977) (“The fact of" }, { "docid": "2400559", "title": "", "text": "now as it was then. It is fundamental that a party having a federal constitutional claim is normally entitled to have that claim determined in a federal forum. As Judge Murrah said in Stapleton v. Mitchell, 60 F.Supp. 51, 55 (D.Kan.1945): We yet like to believe that wherever the Federal Courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum. See Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967) and McNeese v. Board of Education, 373 U.S. 668, 674 n. 6, 83 S.Ct. 1433, 1437, 10 L.Ed.2d 622 (1963) (quoting Judge Murrah with approval). As the Tenth Circuit recently said in Clappier v. Flynn, 605 F.2d 519, 528 (10th Cir. 1979), in another Eighth Amendment case: It is well settled, of course, that if the actions of [state officials] result in a deprivation of a federally protected right, the existence of an adequate state remedy does not bar recovery under 42 U.S.C. Sec. 1983. See: Egan v. Aurora, 365 U.S. 514, 81 S.Ct. 684, 5 L.Ed.2d 741 (1961). The ‘federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.’ Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961), overruled in part, Mo-nell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Abstention is not a matter of jurisdiction, but of trial court discretion. See Western Food Plan, Inc. v. J. D. MacFarlane, 588 F.2d 778 (10th Cir. 1978). A number of federal courts have found that abstention was not warranted in prisoners’ rights litigation, and retained jurisdiction. See, e. g., Procunier v. Martinez, 416 U.S. 396, 400-04, 94 S.Ct. 1800, 1805-07, 40 L.Ed.2d 224 (1974); McRedmond v. Wilson, 533 F.2d 757, 760-64 (2d Cir. 1976); Taylor v. Sterrett, 499 F.2d 367, 368 (5th Cir. 1974), cert." }, { "docid": "2400424", "title": "", "text": "prison, see Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 . . ., we have never turned a deaf ear to a bona fide claim for relief based upon the deprivation of a constitutional right when asserted by a federal or state prisoner, either in the nature of a mandamus or habeas corpus proceeding, or, as here, a claim under the Civil Rights Act. Accord, Gregory v. Wyse, 512 F.2d 378, 381 (10th Cir. 1975), Dearman v. Woodson, 429 F.2d 1288, 1290 (10th Cir. 1970). In Crouse, inmates at the Kansas State Penitentiary complained, inter alia, that prison officials had stood by and not intervened when plaintiffs were assaulted by another inmate. The district court had granted summary judgment in favor of the warden, and the court of appeals reversed, finding that summary judgment was not appropriate. 417 F.2d at 507-10. Defendants have pointed to several recent Supreme Court decisions which reiterate the policy of substantial deference to prison officials. See Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Jones v. North Carolina Prisoners’ Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); and Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). I have read these decisions and, to the extent that they are relevant, I am bound by them. In fact, I have consistently followed this policy. See Jackson v. Moore, 471 F.Supp. 1068 (D.Colo.1979); Marion-eaux v. Colorado State Penitentiary, 465 F.Supp. 1245 (D.Colo.1979); Tuggle v. Evans, 457 F.Supp. 1015 (D.Colo.1978); Mingo v. Patterson, 455 F.Supp. 1358 (D.Colo. 1978); Sorenson v. Zapien, 455 F.Supp. 1207 (D.Colo.1978); and Brown v. McGowen, 445 F.Supp. 468 (D.Colo.1978). But it is always the countervailing principle, in these decisions and others, that “a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.” Procunier v. Martinez, 416 U.S. at 405-06, 94 S.Ct. at" } ]

[ { "docid": "22879340", "title": "", "text": "before that parties are “procedurally required to raise the[ir] issue before Commerce at the time Commerce [is] addressing the issue.” Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d 1375, 1383 (Fed.Cir.2008). This is because “[s]imple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.” United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952). Thus, we agree with the CIT that Dorbest’s failure to raise its issue in its administrative case brief constituted a failure to exhaust administrative remedies. The CIT did not err by refusing to consider an issue on which the complaining party had not exhausted its administrative remedies. Accordingly, we affirm that portion of the CIT’s decision holding that Dorbest was precluded from raising its argument that Commerce erred in its treatment of the excise duty expenses of Indian Furniture Products. In addition, during the administrative process leading to Commerce’s Remand II results, AFMC raised for the first time the issue of whether Commerce had committed a clerical error that caused it to use the incorrect value for the expense of a raw material called rubberwood when determining the cost of production in the Chinese non-market economy. AFMC had not raised the issue either during the ministerial comment period at Commerce or in its complaint or earlier briefing to the CIT. Commerce refused to consider the issue during the remand proceedings, and the CIT affirmed Commerce’s decision, holding that AFMC had waived the issue by not raising it during its multiple opportunities to do so in a timely manner. AFMC appeals, arguing that Commerce abused its discretion by holding that it was unable to review this issue due to AFMC’s waiver. Commerce certainly has the authority to act to correct ministerial errors in the course of judicial review of the final results of its determinations, though it lacks" } ]

[ { "docid": "12367305", "title": "", "text": "as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938); Gallant Ocean (Thailand) Co. v. United States, 602 F.3d 1319, 1323 (Fed.Cir.2010) (same). A determination, finding, or conclusion is not in accordance with law if, inter alia, it is arbitrary. See SKF USA Inc. v. United States, 263 F.3d 1369, 1378, 1382 (Fed.Cir.2001) (reviewing a challenge brought under 19 U.S.C. § 1516a(a)(2) and holding Commerce’s determination to be not in accordance with law under 19 U.S.C. 1516a(b)(1)(B)(i) because “it is well-established that an agency action is arbitrary when the agency offers insufficient reasons for treating similar situations differently” (quotation and alteration marks and citation omitted)); Nat’l Fisheries Inst. v. United States, — CIT -, 637 F.Supp.2d 1270, 1282 (2009) (noting the court’s holding that Commerce’s decision was “arbitrary ... and therefore contrary to law”). DISCUSSION I. Commerce’s Use of CBP Entry Data to Select Mandatory Respondents in this Review A Background In its Notice of Initiation for the instant administrative review,. the Department announced that it would be exercising its discretion under 19 U.S.C. § 1677f-1(c)(2) to limit the number of respondents selected for individual investigation. See Notice of Initiation, 73 Fed.Reg. at 18,765. Relying solely on CBP entry data, the Department identified Pakfood and Rubicon as the two largest producers/exporters of the subject merchandise, and accordingly selected these entities as mandatory respondents in this review. See id.; Certain Frozen Warmwater Shrimp from Thailand, 74 Fed.Reg. 10,000, 10,001 (Dep’t Commerce Mar. 9, 2009) (“Prelim.Results”) (unchanged in final results, see Final Results, 74 Fed.Reg. at 47,553); I & D Mem. Cmt. 2. AHSTAC argues, inter alia, that Commerce’s exclusive reliance on CBP entry data in selecting the mandatory respondents for this review was contrary to law because it is both inconsistent with prior practice (i.e. arbitrary and capricious ) and an abuse of discretion. (See Mem. of Law in Supp. of PL [AHSTAC]’s Rule 56.2 Mot. for J. on Agency R. (“AHS-TAC’s Br.”) 13.) In response, Commerce contends that it reasonably" }, { "docid": "20745487", "title": "", "text": "Proceedings Involving Non-Market Economies: Valuing the Factor of Production: Labor, 76 Fed.Reg. 36,092 (Dep’t Commerce June 21, 2011) {“New Labor Methodology \"). . All further citations to the Tariff Act of 1930, as amended, are to Title 19 of the U.S.Code, 2006 edition, unless otherwise noted. . The facts of this case were summarized in the court's prior opinion. Camau I, —CIT at —, 880 F.Supp.2d at 1351-53, 1357-58. Familiarity with Camau I is presumed, and only those facts necessary to the disposition are reiterated here. . Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, Issues and Decision Mem., A-552-802, ARP 08-09 (July 30, 2010) (adopted in 75 Fed.Reg. 47,771, 47,772 (Dep’t Commerce Aug. 9, 2010) (final results and partial rescission of antidumping duty administrative review)) (\"AR 4 I & D Mem.”), cmt. 9 at 27. . Dorbest IV invalidated the regulation, 19 C.F.R. § 351.408(c)(3), that Commerce relied upon to value labor using a multi-country regression analysis, holding that the regulation \"improperly require[d] using data from both economically comparable and economically dissimilar countries, and it improperly use[d] data from both countries that produce comparable merchandise and countries that do not.\" Dorbest TV, 604 F.3d at 1372. Shandong Rongxin, held that Commerce was including countries in the surrogate labor average that produced little or no comparable merchandise in contravention of the statutory requirement that a surrogate country be a significant producer of comparable merchandise. Shandong Rongxin, — CIT at —, 774 F.Supp.2d at 1316. . The court makes no judgment regarding which dataset is the best available information. That decision is reserved to Commerce so long as it supports its determination with a reasoned explanation. Zhejiang DunAn Hetian Metal Co. v. United States, 652 F.3d 1333, 1341 (Fed.Cir.2011). . Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee (\"AHSTAC”) also argues that the BBS is not fairly equal because the labor rate drawn from the BBS data, $0.21 USD/hour, is aberrational. Ad Hoc Shrimp Trade Action Comm.’s Comments on Final Results of Redetermination Pursuant to Court Remand, ECF No. 94 (“AHSTAC’s Comments”) at 22-28. AHSTAC's claim of aberration is premised" }, { "docid": "12367319", "title": "", "text": "law, that a CEP offset is proper under the facts of the present case.” (citing Timken U.S. Corp. v. United States, 434 F.3d 1345, 1352 (Fed.Cir.2006)))).) While it is true that “[a]n agency is obligated to follow precedent,” M.M. & P. Maritime Advancement, Training, Educ. & Safety Program v. Dep’t Commerce, 729 F.2d 748, 755 (Fed.Cir.1984), “Commerce [nevertheless] has ‘discretion to ... adapt its views and practices to the particular circumstances of the case at hand, so long as the agency’s decisions are explained and supported by substantial evidence on the record.’ ” Nakornthai, — CIT at -, 587 F.Supp.2d at 1307 (quoting Trs. in Bankr.of N. Am. Rubber Thread Co. v. United States, — CIT -, 533 F.Supp.2d 1290, 1297 (2007)). Accord Alloy Piping, 2009 WL 983078, at *6. In this case, the Department determined that, unlike the evidence presented to the agency in the LTFV investigation and the second review, “[t]he verified record evidence supports Rubicon’s [CEP] offset.” (Def.’s Br. 10.) See I & D Mem. Cmt. 8 at 29 (“[B]ased on the facts on the record of the current review, ... we find it appropriate to [ ] grant a CEP offset to the Rubicon Group.... ”). The question before the court is thus whether this determination was adequately explained and supported by substantial evidence on the record. See Nakornthai, — CIT at -, 587 F.Supp.2d at 1307-08; Alloy Piping, 2009 WL 983078, at *6. AHSTAC essentially argues that Commerce has failed to adequately distinguish the record evidence of the third review from that of the second review and LTFV investigation, and that the agency must accordingly follow its past precedent in those prior segments. (See AHSTAC’s Br. 17-18.) The court disagrees. In the LTFV investigation underlying this AD duty order, the Department explained that, to show entitlement to a CEP offset, “[a] respondent must first demonstrate that substantial differences in selling functions exist between the third country [NV] and CEP [LOTs].” Issues & Decision Mem., A-549-822, Investigation (Dec. 23, 2004), available at http://ia.ita. doc.gov/frn/summary/thailand/04-28171-1. pdf (last visited Sept. 1, 2010) (incorporated by reference in Certain Frozen" }, { "docid": "21839456", "title": "", "text": "justifying a departure from this general rule.’ ” City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C.Cir.2010) (quoting Tex. Rural Legal Aid v. Legal Servs. Corp., 940 F.2d 685, 698 (D.C.Cir. 1991)); see also Cape Hatteras Access Pres. Alliance v. U.S. Dep’t of Interior, 667 F.Supp.2d 111, 115 (D.D.C.2009) (“[Tjhere are certain limited, and highly exceptional, circumstances when a court may review evidence beyond the administrative record.”). Departures from the general rule should be made “sparingly” and typically “only [in] those cases where extra-record evidence [is] necessary to make judicial review effective.” Cape Hatteras, 667 F.Supp.2d at 115. Finally, a court ruling on agency action pursuant to the APA’s judicial-review provision is required to “take account” of “the rule of prejudicial error.” 5 U.S.C. § 706. Few rulemakings are perfect, and a court should not set aside an agency’s action under the APA based on procedural irregularities that constitute harmless error. Although the burden to show that an error was not harmless may fall on the agency if it “completely fail[s] to comply” with its notice-and-comment obligations under 5 U.S.C. § 553, the burden is generally on the challenger to the rule to demonstrate that any given error was not harmless. McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1323-24 (D.C.Cir.1988). At a minimum, the challenger bears the burden to demonstrate prejudice “where the agency merely failed to provide proper access to some supplemental study or studies”—or other data, information, or evidence—“that partially undergirded its rule.” Id In particular, when an agency fails to disclose supporting documents or information, a plaintiff must “show that error was prejudicial” by “indicating] with reasonable specificity what portions of the documents [or other supporting material] it objects to and how it might have responded if given the opportunity.” Owner-Operator Indep. Drivers Ass’n v. Fed. Motor Carrier Safety Admin., 494 F.3d 188, 202 (D.C.Cir.2007) (quoting Gerber v. Norton, 294 F.3d 173, 182 (D.C.Cir.2002)) (internal quotation mark omitted). Furthermore, a plaintiff “must ‘show that on remand [it] can mount a credible challenge ... and [was] thus prejudiced by the absence of an opportunity" }, { "docid": "11657078", "title": "", "text": "to conform United States law to Article 11.3 of the MTN Customs Valuation Agreement, Section 1001(b)(2) * * * would amend section 515(a) so as to require the Customs Service to include reasons in its notice of denial of a protest as well as a statement that the importer may file a civil action in the Customs Court to contest the denial. S. Rep. 249, 96th Cong., 1st Sess. 254, reprinted in 1979 U.S. Code Cong, and Admin. News 381, 639-640 (emphasis added). When the congressional intent is unclear, an argument may be made for construing “shall” to be permissive or directory. But in the present case, Congress could not have made its intent more clear; the provision is mandatory. Customs does not have discretion to include or exclude either notice of the right to file a civil action or the reasons for the denial of a protest. As stated previously by this Court, both are “formal require- merits for a protest denial.” Wally Packaging, Inc. v. United States, 7 CIT 19, 23, 578 F. Supp. 1408, 1412 (1984). Hence, the notice of denial was incomplete. The question then is, what are the consequences if mandatory provisions of the notice of denial are missing. While the statute orders Customs to include those statements in the notice, it does not indicate the consequences if Customs does not comply. Plaintiff would have the Court vacate the denial and order Customs to re-assess the protests, then deny or allow them, after which plaintiff would have 180 days to bring suit in this Court. There is no question that when a government agency acts “without observance of procedure required by law,” courts have the power to set aside that action. Woodrum v. Donovan, 4 CIT 46, 52, 544 F. Supp. 202, 207 (1982) (citing Administrative Procedure Act § 706(2)(D), 5 U.S.C. § 706(2)(D) (1976)); American Motorists Ins. Co. v. United States, 5 CIT 33, 43 (1983). However, it is equally well settled that courts will not set aside agency action for procedural errors unless the errors “were prejudicial to the party seeking to have" }, { "docid": "11657079", "title": "", "text": "Supp. 1408, 1412 (1984). Hence, the notice of denial was incomplete. The question then is, what are the consequences if mandatory provisions of the notice of denial are missing. While the statute orders Customs to include those statements in the notice, it does not indicate the consequences if Customs does not comply. Plaintiff would have the Court vacate the denial and order Customs to re-assess the protests, then deny or allow them, after which plaintiff would have 180 days to bring suit in this Court. There is no question that when a government agency acts “without observance of procedure required by law,” courts have the power to set aside that action. Woodrum v. Donovan, 4 CIT 46, 52, 544 F. Supp. 202, 207 (1982) (citing Administrative Procedure Act § 706(2)(D), 5 U.S.C. § 706(2)(D) (1976)); American Motorists Ins. Co. v. United States, 5 CIT 33, 43 (1983). However, it is equally well settled that courts will not set aside agency action for procedural errors unless the errors “were prejudicial to the party seeking to have the action declared invalid.” Woodrum, 4 CIT at 52, 544 F. Supp. at 207; Katunich, 8 CIT at 162, 594 F. Supp. at 749; American Motorists, 5 CIT at 43; Timken v. Regan, 4 CIT 174, 179, 552 F. Supp. 47, 52 (1982). In the present action, Customs issued a notice of denial of protests which Sea-Land seeks to have vacated because it lacked the two aforementioned provisions required by law. For the Court to set aside the issuance of the notice of denial so as to grant plaintiff additional time within which to bring its complaint, the Court must find that Sea-Land was prejudiced by the absence of the required provisions. Woodrum, 4 CIT at 52, 544 F. Supp. at 207; American Motorists, 5 CIT at 43; Timken, 4 CIT at 179, 552 F. Supp. at 52. Plaintiff has not pleaded any prejudice as a result of the missing provisions. Plaintiff’s Opposition Brief at 9. Moreover, as defendant notes, Sea-Land did file a timely summons contesting several denials of its protests in the test" }, { "docid": "17503273", "title": "", "text": "the protest under section 514.” Id. Customs Protest Denial complied with these requirements as well as it provided its reason for denying the protest-that the documentation did not substantiate Western Power’s country of origin declaration. Customs’ Protest Denial also informed Western Power of its right to appeal to this Court, and thus satisfied both agency regulations and any constitutional requirements. No similar regulation or statute was referenced regarding Customs’ Notice. Even if Western Power’s administrative arguments were valid, the company still failed to demonstrate that any prejudice resulted from Customs’ actions. A court will not set aside an agency action for procedural errors unless the errors “were prejudicial to the party seeking to have the action declared invalid.” Woodrum v. Donovan, 4 CIT 46, 52, 544 F.Supp. 202, 207 (1982). In Sear-Land Service, Inc. v. United States, the Court upheld the sufficiency of several protest denials despite their failure to provide the reason for the denials and to inform the importer of its right to appeal as required by statute. 14 CIT 253, 155-56, 735 F.Supp. 1059, 1062-64 (1990). Despite the clear deficiency of the protest denials, the Sea Land Court refused to vacate the penalties imposed because the importer was aware of its right to bring suit, and thus had not been prejudiced by the administrative oversight. Here, Western Power is similarly unable to demonstrate prejudice as the company timely filed suit before this Court. Accordingly, Western Power’s administrative law claim fails. IV. CONCLUSION For the foregoing reasons, the Court grants Custom’s cross-motion for partial summary judgment. . Western Power and Customs also dispute whether the company had a property interest meriting due process protection. The Court need not address this issue because even if Western Power had a cognizable property interest, its argument would still fail as Customs' Notice and Protest Denial met constitutional standards." }, { "docid": "18353790", "title": "", "text": "business practices of an industry. In such a case, it is important to warn the industry that changes may be necessary and to give interested parties an opportunity to respond. These policy con siderations are fully applicable to a change in country-of-origin marking requirements. For instance, in this case, the retail orange juice processors will be required to change their labeling or drastically reduce their importation of manufacturing concentrate to avoid disruption from the imposition of the marking requirements. The transition to either of these practices cannot be instantaneous. Therefore, the imported manufacturing concentrate ruling will result in a restriction in the sense that products will not be released by Customs when the certification requirements cannot be met. Clearly the rationale underlying section 177.10(c)(2) provides a basis for concluding that the importers and other interested parties should be forewarned and given an opportunity to comment before Customs publishes a change in position that results in restricted importation of this product. C.S.D. 85-47, then, is appropriately considered to be a ruling that changes a position of Customs and results in a restriction. Customs was in fact reviewing its position as to whether orange juice manufacturing concentrate is substantially transformed when completely reconstituted or blended with oils, essences, or juices. As a result, Customs was required to publish notice of these circumstances and to allow interested parties to submit written comments “with respect to the correctness of the contemplated change.” 19 C.F.R. § 177.10(c)(2) (1985). Although defendant failed to publish the required notice of its change in position, this omission will only affect the ruling if it results in prejudice to the plaintiff. Gilmore Steel Corp. v. United States, 7 CIT —, 585 F.Supp. 670, 679 (1984); American Motorists Insurance Co. v. United States, 5 CIT 33, 43 (1983); Timken Co. v. Regan, 4 CIT 174, 180, 552 F.Supp. 47, 52 (1982); Woodrum v. Donovan, 4 CIT 46, 52, 544 F.Supp. 202, 207 (1982). In this case a harmless error determination must be made as to each of two parts of the ruling. The first part pertains to whether manufacturing concentrate undergoes" }, { "docid": "18963969", "title": "", "text": "\"[o]ur home market demand does not affect our production decisions. Most of our production decisions in terms of volumes, periods, varieties, and colors are all geared to fulfill the U.S. market's demand since it is our biggest market.” Def.’s HOSA App., Ex. 10 at 13. . Plaintiff Flores del Rio is a producer and exporter of subject flowers and comprises three farms: Agricola Cardenal S.A., Flores del Rio S.A., and Indigo S.A. 61 Fed.Reg. at 42,867-68. . Flores del Rio also argues that Commerce did nol return the revised information that the Department rejected in accordance with 19 C.F.R. § 353.31(b)(2). Flores del Rio Brief at 9-10. But even if Commerce had complied with the regulation the outcome here would remain the same. Because Flores del Rio was not prejudiced by Commerce's failure to return the revised information, the Court finds Commerce’s error was harmless. See Sea-Land Serv., Inc. v. United States, 14 CIT 253, 257, 735 F.Supp. 1059, 1063 (1990)(\"[I]t is ... well settled that courts will not set aside agency action for procedural errors unless the errors 'were prejudicial to the party seeking to have the action declared invalid.\"'), aff'd, 923 F.2d 838 (Fcd.Cir.1991). . Flores del Rio also argues that its situation was one of a \"catch 22.\" Flores del Rio Brief at 8. Specifically, Flores del Rio maintains that Commerce's \"own regulations precluded Rio from knowingly re-submitting incorrect data,\" yet, the company's corrections were rejected by Commerce. Id.; see 19 C.F.R. § 353.3l(l)(i). But Flores del Rio could have avoided this situation by submitting an explanation and supporting documentation with its revised data. .The antidumping statute requires Commerce to verify all information relied upon. See 19 U.S.C. 1677e(b); 19 C.F.R. 353.36(a). If the Department is unable to verify the accuracy of the factual information submitted, Commerce may resort to \"best information available.\" See 19 U.S.C. § 1677e(b); 19 C.F.R. § 353.37(a)(2). . Although the depreciation line (item 214) included expenses other than depreciation expenses, Commerce made an upward adjustment of 46.41 percent to all of Flores del Rio’s listed expenses because the company's response did not" }, { "docid": "18353791", "title": "", "text": "Customs and results in a restriction. Customs was in fact reviewing its position as to whether orange juice manufacturing concentrate is substantially transformed when completely reconstituted or blended with oils, essences, or juices. As a result, Customs was required to publish notice of these circumstances and to allow interested parties to submit written comments “with respect to the correctness of the contemplated change.” 19 C.F.R. § 177.10(c)(2) (1985). Although defendant failed to publish the required notice of its change in position, this omission will only affect the ruling if it results in prejudice to the plaintiff. Gilmore Steel Corp. v. United States, 7 CIT —, 585 F.Supp. 670, 679 (1984); American Motorists Insurance Co. v. United States, 5 CIT 33, 43 (1983); Timken Co. v. Regan, 4 CIT 174, 180, 552 F.Supp. 47, 52 (1982); Woodrum v. Donovan, 4 CIT 46, 52, 544 F.Supp. 202, 207 (1982). In this case a harmless error determination must be made as to each of two parts of the ruling. The first part pertains to whether manufacturing concentrate undergoes a substantial transformation in being processed into frozen or reconstituted orange juice. Plaintiffs are not prejudiced by the failure to publish notice as to this issue because, as is obvious, plaintiffs fully participated in the administrative process. Furthermore, comments from the public at large cannot change the essentially legally correct result. The second part of the ruling, however, involves the appropriate effective date of the ruling. Customs regulations relating to the type of ruling at issue here state that “[ejxcept as otherwise provided for in the ruling itself, all rulings published under the provision of this part shall be applied immediately.” 19 C.F.R. § 177.10(e) (1985) (emphasis added). This caveat leaves to Customs’ discretion the option to delay the effective date of a ruling. In its initial ruling Customs chose an effective date of January 1, 1986, a four month lag time. C.S.D. 85-47, 19 Cust.Bull. No. 39 at 28. Customs offered no reasons for choosing' this date. When Customs reconsidered and changed the effective date to March 1, 1986, it also failed to articulate" }, { "docid": "11657080", "title": "", "text": "the action declared invalid.” Woodrum, 4 CIT at 52, 544 F. Supp. at 207; Katunich, 8 CIT at 162, 594 F. Supp. at 749; American Motorists, 5 CIT at 43; Timken v. Regan, 4 CIT 174, 179, 552 F. Supp. 47, 52 (1982). In the present action, Customs issued a notice of denial of protests which Sea-Land seeks to have vacated because it lacked the two aforementioned provisions required by law. For the Court to set aside the issuance of the notice of denial so as to grant plaintiff additional time within which to bring its complaint, the Court must find that Sea-Land was prejudiced by the absence of the required provisions. Woodrum, 4 CIT at 52, 544 F. Supp. at 207; American Motorists, 5 CIT at 43; Timken, 4 CIT at 179, 552 F. Supp. at 52. Plaintiff has not pleaded any prejudice as a result of the missing provisions. Plaintiff’s Opposition Brief at 9. Moreover, as defendant notes, Sea-Land did file a timely summons contesting several denials of its protests in the test case under which this case was suspended. Defendant’s Motion to Sever and Dismiss at 17. Therefore, the Court holds that the absence of the provision notifying plaintiff of its right to file a civil suit contesting the notice of denial did not prejudice plaintiff. Plaintiff was well aware of its right to bring suit as evidenced by its prior timely actions contesting earlier notices of denial. Furthermore, plaintiff does not claim that the absence of a reason for the denial contributed to its failure to file suit within 180 days of the issuance of the denial. The protests filed by Sea-Land indicate that it was aware of the dispute in the case, and of Customs’ legal position on the matter. While that does not excuse Customs’ failure to provide a reason for the denial on the notice, it does provide support for the proposition that Sea-Land was not prejudiced by the absence of a reason for the denial. Also, as defendant points out, had Sea-Land been awaiting a reason for the denial prior to filing" }, { "docid": "12210211", "title": "", "text": "Labs., Inc. v. United States, 46 Fed.Cl. 467, 480 (Fed.Cl.2000), the court addresses the merits of the case first. 2. Protest of an Agency’s Procurement Decision In a bid protest action, the court reviews defendant’s source selection decision under the standards set out in the Administrative Procedure Act (APA), 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4). The APA directs a reviewing court to overturn agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or, alternatively, “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A), (C). The protestor must show, by a preponderance of the evidence, that the agency’s actions were either without a reasonable basis or in violation of applicable procurement law. GraphicData, LLC v. United States, 37 Fed.Cl. 771, 779 (Fed.Cl.1997). In addition to showing that the agency’s action was arbitrary or capricious or otherwise inconsistent with law, a plaintiff in a bid protest action must show that the action was prejudicial. See 28 U.S.C. § 1491(b)(4); 5 U.S.C. § 706 (“[D]ue account shall be taken of the rule of prejudicial error.”); Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed.Cir.1996) (“[T]o prevail in a protest the protester must show not only a significant error in the procurement process, but also that the error prejudiced it.”). To show prejudice, the protestor must demonstrate that there is a reasonable likelihood that, absent the error or violation of law, it would have been awarded the contract. Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.Cir.1999). The agency is entitled to broad discretion in evaluating proposals in a “best value” procurement, such as the one at issue here. See CACI Field Servs., Inc. v. United States, 13 Cl.Ct. 718, 725 (1987), aff'd, 854 F.2d 464 (Fed.Cir.1988). A court “should not substitute its judgment ... for that of the agency, but should intervene only when it is clearly determined that the agency’s determinations were irrational or unreasonable.” Baird Corp. v. United States, 1 Cl.Ct. 662, 664 (1983). If defendant shows that there" }, { "docid": "17503272", "title": "", "text": "substantiate the country of origin determination. Customs’ Protest Denial also informed Western Power of its right to object to its findings and to file an appeal to preserve its rights, which the company eventually did. Accordingly, Western Power’s procedural due process claim lacks merit. B. Customs Did Not Violate the Principles of Administrative Law Western Power also claims that Customs’ Notice and Protest Denial violated the fundamental principles of administrative law. Specifically, Western Power contends that Customs is required to provide its rationale for rejecting Hong Kong as its imports country of origin to satisfy the requirements of administrative law. This argument also fails. Western Power is unable to point to any specific regulations or statutes violated by Customs. In fact, the only regulation referenced by Western Power is 19 C.F.R. § 174.30, the procedure governing protest denials. Section 174.30 requires that Customs’ Protest Denial shall include “a statement of the reasons for the denial, as well as a statement informing the protesting party of the right to a civil action contesting the denial of the protest under section 514.” Id. Customs Protest Denial complied with these requirements as well as it provided its reason for denying the protest-that the documentation did not substantiate Western Power’s country of origin declaration. Customs’ Protest Denial also informed Western Power of its right to appeal to this Court, and thus satisfied both agency regulations and any constitutional requirements. No similar regulation or statute was referenced regarding Customs’ Notice. Even if Western Power’s administrative arguments were valid, the company still failed to demonstrate that any prejudice resulted from Customs’ actions. A court will not set aside an agency action for procedural errors unless the errors “were prejudicial to the party seeking to have the action declared invalid.” Woodrum v. Donovan, 4 CIT 46, 52, 544 F.Supp. 202, 207 (1982). In Sear-Land Service, Inc. v. United States, the Court upheld the sufficiency of several protest denials despite their failure to provide the reason for the denials and to inform the importer of its right to appeal as required by statute. 14 CIT 253, 155-56, 735" }, { "docid": "12367318", "title": "", "text": "AD order, as well as the second administrative review of this order, where Commerce declined to grant Rubicon a CEP offset. (AHSTAC’s Br. 16-17.) In response, the Department asserts that “Commerce makes determinations based upon the record of the relevant segment of the proceeding, not previous segments, and [that] the record of this review supports Commerce’s determination.” (Def.’s Br. 12; see also id. at 13 (noting that “the Court has rejected explicitly the contention that denial of a [CEP] offset in an early segment of the proceeding, even if the facts were identical, should control Commerce’s decision in a subsequent review”) (citing Alloy Piping Prods., Inc. v. United States, No. 08-00027, 2009 WL 983078, at *6 (CIT 2009) (“Even assuming Commerce’s determinations at issue are factually identical, as a matter of law a prior administrative determination is not legally binding on other reviews before this court. Thus, the court is not persuaded by Plaintiffs’ suggestion to follow the analysis in [a prior review] given that Commerce has demonstrated with substantial evidence, and in accordance with law, that a CEP offset is proper under the facts of the present case.” (citing Timken U.S. Corp. v. United States, 434 F.3d 1345, 1352 (Fed.Cir.2006)))).) While it is true that “[a]n agency is obligated to follow precedent,” M.M. & P. Maritime Advancement, Training, Educ. & Safety Program v. Dep’t Commerce, 729 F.2d 748, 755 (Fed.Cir.1984), “Commerce [nevertheless] has ‘discretion to ... adapt its views and practices to the particular circumstances of the case at hand, so long as the agency’s decisions are explained and supported by substantial evidence on the record.’ ” Nakornthai, — CIT at -, 587 F.Supp.2d at 1307 (quoting Trs. in Bankr.of N. Am. Rubber Thread Co. v. United States, — CIT -, 533 F.Supp.2d 1290, 1297 (2007)). Accord Alloy Piping, 2009 WL 983078, at *6. In this case, the Department determined that, unlike the evidence presented to the agency in the LTFV investigation and the second review, “[t]he verified record evidence supports Rubicon’s [CEP] offset.” (Def.’s Br. 10.) See I & D Mem. Cmt. 8 at 29 (“[B]ased on the" }, { "docid": "20745489", "title": "", "text": "on the Bangladeshi labor rate being the lowest on the record. AHSTAC cites Xinjiamei Furniture (Zhangzhou) Co. v. United States, Slip Op. 13-30, 2013 WL 920276 (CIT Mar. 11, 2013), and Mittal Steel Galati S.A. v. United States, 31 CIT 1121, 502 F.Supp.2d 1295 (2007), in support of its argument that data can be found aberrational by comparison to other data on the record. AHSTAC’s Comments at 22-25. But Xinjiamei Furniture and Mittal Steel are distinguishable from this case. It is true that both cases found aberrational a surrogate value chosen by Commerce that was significantly different from other values on the record; however, both cases also found that the source of the aberrational surrogate value was of such a low volume that its reliability was questionable. See Xinjiamei Furniture, 2013 WL 920276, at *5 (\"[T]he evidence produced by plaintiff is sufficient to cause any reasonable mind to seek some explanation as to how such a small sample could be nondistortive and potentially the best available information.”) (internal quotation marks omitted); Mittal Steel, 31 CIT at 1135, 502 F.Supp.2d at 1307-08 (\"The court remands this issue to Commerce for further explanation in light of the data placed on the record that demonstrates that the limestone value that Commerce selected was much higher than the value of limestone imported in other countries and applied to a small volume of imports.”). In this case, AHSTAC does not offer any basis for finding the Bangladeshi labor values aberrational beyond the fact that the Bangladeshi values are the lowest on the record. Furthermore, unlike Xinjiamei Furniture and Mittal Steel, the Bangladeshi labor values are not significantly different from most or all of the other values on the record. Rather, the prices that AHSTAC offers for comparison form a nearly straight line continuum from the Bangladeshi data on the low end to the Philippine ILO Chapter 6A data on the high end. AHSTAC’s Comments at 22 (comparing the following values; $0.21 (BBS); $0.41 (Indonesia ILO Chapter 5B); $0.70 (India ILO Chapter 6A); $0.82 (Guyana ILO Chapter 6A); $1.02 (Nicaragua ILO Chapter 6A); $1.91 (Philippines ILO" }, { "docid": "18963968", "title": "", "text": "the costs of the flowers); Certain Fresh Cut Flowers From Colombia, 52 Fed.Reg. 6,842, 6,844 (Dep’t Commerce 1987)(final det.)(\"Parl of the waste which occurs during production is comprised of the non-export quality flowers (’culls’) which are produced in conjunction with the growth of the export quality flowers. These 'culls' were considered by the Department to be by-products. Therefore, the revenues from the sales of these culls were offset against the costs of the flowers.’’). . In cost accounting, the characteristic that generally distinguishes co-products from byproducts, or scrap, is often the relative sales value of the product in question. By-products typically have a relatively minor sales value compared to that of the major products produced in the common manufacturing process. Charles T. Horngren & George Foster, Cost Accounting, A Managerial Emphasis 490 (5th ed.1982). This can be due to a small output or to low unit selling prices or to both. Wayne J. Morse & Harold P. Roth, Cost Accounting 157 (2d ed.1986). . HOSA admitted this fact. In its section A response, HOSA stated, \"[o]ur home market demand does not affect our production decisions. Most of our production decisions in terms of volumes, periods, varieties, and colors are all geared to fulfill the U.S. market's demand since it is our biggest market.” Def.’s HOSA App., Ex. 10 at 13. . Plaintiff Flores del Rio is a producer and exporter of subject flowers and comprises three farms: Agricola Cardenal S.A., Flores del Rio S.A., and Indigo S.A. 61 Fed.Reg. at 42,867-68. . Flores del Rio also argues that Commerce did nol return the revised information that the Department rejected in accordance with 19 C.F.R. § 353.31(b)(2). Flores del Rio Brief at 9-10. But even if Commerce had complied with the regulation the outcome here would remain the same. Because Flores del Rio was not prejudiced by Commerce's failure to return the revised information, the Court finds Commerce’s error was harmless. See Sea-Land Serv., Inc. v. United States, 14 CIT 253, 257, 735 F.Supp. 1059, 1063 (1990)(\"[I]t is ... well settled that courts will not set aside agency action for procedural" }, { "docid": "23006611", "title": "", "text": "Foundry Co. v. United States, 12 CIT 343, 345, 685 F.Supp. 1252, 1255 (1988). This Court has also stated “that fair and accurate determinations are fundamental to the proper administration of our dumping laws” and that “courts have uniformly authorized the correction of any clerical errors which would affect the accuracy of a determination.” Koyo Seiko Co. v. United States, 14 CIT -, -, 746 F.Supp. 1108, 1110 (1990); see, e.g., Daewoo Elecs. Co. v. United States, 13 CIT 253, 279-80, 712 F.Supp. 931, 954 (1989); Asociacion Colombiana de Exportadores v. United States, 13 CIT 13, 28, 704 F.Supp. 1114, 1126 (1989), aff'd, 901 F.2d 1089 (Fed.Cir.1990), cert. denied,, — U.S. -, 111 S.Ct. 136, 112 L.Ed.2d 103 (1990); Serampore Indus. Pvt. Ltd. v. United States Dep’t of Commerce, 12 CIT 825, 834, 696 F.Supp. 665, 673 (1988); Gilmore Steel Corp. v. United States, 7 CIT 219, 223-24, 585 F.Supp. 670, 674 (1984); Atlantic Sugar, Ltd. v. United States, 1 CIT 211, 511 F.Supp. 819 (1981). Defendant-intervenor Federal-Mogul Corporation took no part in this phase of this proceeding since it does not produce cylindrical roller bearings and therefore does not have standing to support the contested determination in regard to NSK’s cylindrical roller bearings. Federal-Mogul Corporation’s Response to Plaintiffs’ Motion for Judgment on the Agency Record at 2. 1. Clerical Error ITA has promulgated a regulation which sets time limits on the submission of factual information in administrative reviews. The regulation states in pertinent part: § 353.31 Submission of factual information. (a) Time limits in general. (1) Except as provided in paragraphs (a)(2) and (b) of this section, submissions of factual information for the Secretary’s consideration shall be submitted not later than: (ii) For the Secretary’s final results of an administrative review under § 353.-22(c) or (f), the earlier of the date of publication of notice of preliminary results of review or 180 days after the date of publication of notice of initiation of the review; (2) Any interested party ... may submit factual information to rebut, clarify, or correct factual information submitted by an interested party ... at any" }, { "docid": "20745488", "title": "", "text": "countries, and it improperly use[d] data from both countries that produce comparable merchandise and countries that do not.\" Dorbest TV, 604 F.3d at 1372. Shandong Rongxin, held that Commerce was including countries in the surrogate labor average that produced little or no comparable merchandise in contravention of the statutory requirement that a surrogate country be a significant producer of comparable merchandise. Shandong Rongxin, — CIT at —, 774 F.Supp.2d at 1316. . The court makes no judgment regarding which dataset is the best available information. That decision is reserved to Commerce so long as it supports its determination with a reasoned explanation. Zhejiang DunAn Hetian Metal Co. v. United States, 652 F.3d 1333, 1341 (Fed.Cir.2011). . Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee (\"AHSTAC”) also argues that the BBS is not fairly equal because the labor rate drawn from the BBS data, $0.21 USD/hour, is aberrational. Ad Hoc Shrimp Trade Action Comm.’s Comments on Final Results of Redetermination Pursuant to Court Remand, ECF No. 94 (“AHSTAC’s Comments”) at 22-28. AHSTAC's claim of aberration is premised on the Bangladeshi labor rate being the lowest on the record. AHSTAC cites Xinjiamei Furniture (Zhangzhou) Co. v. United States, Slip Op. 13-30, 2013 WL 920276 (CIT Mar. 11, 2013), and Mittal Steel Galati S.A. v. United States, 31 CIT 1121, 502 F.Supp.2d 1295 (2007), in support of its argument that data can be found aberrational by comparison to other data on the record. AHSTAC’s Comments at 22-25. But Xinjiamei Furniture and Mittal Steel are distinguishable from this case. It is true that both cases found aberrational a surrogate value chosen by Commerce that was significantly different from other values on the record; however, both cases also found that the source of the aberrational surrogate value was of such a low volume that its reliability was questionable. See Xinjiamei Furniture, 2013 WL 920276, at *5 (\"[T]he evidence produced by plaintiff is sufficient to cause any reasonable mind to seek some explanation as to how such a small sample could be nondistortive and potentially the best available information.”) (internal quotation marks omitted); Mittal Steel, 31 CIT" }, { "docid": "11657087", "title": "", "text": "time limits on agency action, where strict enforcement of the statutory limits would yield harsh or absurd results, or where “important public rights are at stake.” Brock v. Pierce County, 476 U.S. 263, 260, 106 S. Ct. 1834, 1839 (1986); Canadian Fur Trappers Corp. v. United States, 12 CIT 612, 615, 691 F. Supp. 364, 367 (1988), aff’d, 884 F.2d 563 (Fed. Cir. (T) 1989); AmericanPermac,Inc. v. United States, 10 CIT 535, 539, 642 F. Supp. 1187, 1191 (1986); Katunich v. Donovan, 8 CIT 156, 161-62, 594 F. Supp. 744, 749 (1984). In those cases, the congressional intent would have been foiled had the statutory provisions been construed as mandatory since the plaintiffs rights of action would have been eliminated. Here, as stated above, the congressional intent clearly was to require inclusion, in the notice, of the provisions in question. Sea-Land contends that the errors committed by Customs were not procedural because “the law was changed to require the particular notice.” Plaintiffs Opposition Brief at 4 (emphasis in original). Notice to a party is a procedural issue, whether statutorily mandated or not. Plaintiff argues that it is not seeking to invalidate any action taken by Customs. Plaintiffs Opposition Brief si 9. The Court finds this position untenable. Customs issued a notice of denial, which Sea-Land here asks the Court to set aside because of inadequacy so that Sea-Land can have another opportunity to bring a civil suit. Plaintiff, therefore, is seeking to invalidate Customs’ issuance of a notice of denial. Indeed, for this Court to toll the statute of limitations would, in fact, serve to elevate form over substance, in particular since no prejudice was shown." }, { "docid": "16893708", "title": "", "text": "unable to produce information requested in a timely manner and in the form required, or otherwise significantly impedes an investigation, use the best information otherwise available. 19 U.S.C. § 16'77e(c). Section 1677f(e) provides that data shall be submitted to the administering authority or the Commission during the course of a proceeding on a timely basis and shall be subject to comment by other parties within such reasonable time as the administering authority or the Commission shall provide. If information is submitted without an adequate opportunity for other parties to comment thereon, the administering authority or the Commission may return the information to the party submitting it and not consider it. This statute has been enforced by the ITA and upheld in court. See, e.g., Zenith Electronics Corp. v. United States, 14 CIT 831, 848, 755 F.Supp. 397, 414 (1990); Seattle Marine Fishing Supply Co. v. United States, 12 CIT 60, 68-71, 679 F.Supp. 1119, 1126-28 (1988), aff’d, 883 F.2d 1027 (Fed. Cir. 1989);Ansaldo Componenti, S.p.A. v. United States, 10 CIT 28, 36-37, 628 F.Supp. 198, 204-05 (1986), citing Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556 (Fed.Cir. 1984), and UST, Inc. v. United States, 9 CIT 352 (1985). On the other hand, the agency does have discretion to accept late submissions, but it is not required to do so, and deadlines generally have been sustained. Cf. Brother Industries, Ltd. v. United States, 15 CIT 332, 340, 771 F.Supp. 374, 383-84 (1991). If the record indicated lack of adequate warning or of sufficient time in which to respond, resort to best information available would, at least arguably, have been inappropriate. See, e.g., Daewoo Electronics Co. v. United States, 13 CIT 253, 266-67, 712 F.Supp. 931, 944-45 (1989). However, it is clear that, in the absence of extension(s) from the ITA, Emmepi should have heeded the warning in the August 24,1988 letter and responded. While that letter granted the company 15 more days to do so, even the most liberal interpretation thereof could not have stretched them into 1989. IV The plaintiff also complains that use of the 1980 rate as" } ]

[ { "docid": "8013899", "title": "", "text": "affects the fairness, integrity or public reputation of judicial proceedings.” Hastings, 134 F.3d at 244 (alteration & internal quotation marks omitted). We conclude that exercise of our discretion is warranted here. As a result of a plain and prejudicial Sixth Amendment error, Hughes was sentenced to a term of imprisonment nearly four times as long as the maximum sentence authorized by the jury verdict. There can be no doubt that failure to notice such an error would seriously affect the fairness, integrity, or public reputation of judicial proceedings. See United States v. Ford, 88 F.3d 1350, 1356 (4th Cir.1996) (noticing,a plain, prejudicial sentencing error that would have caused the defendant to “serve a term of imprisonment three years longer than required by the sentencing guidelines”); see also Oli ver, 397 F.3d at 380 (noticing a plain, prejudicial error under Booker). The record does not provide any indication of what sentence the district court would have imposed had it exercised its discretion under § 3553(a), treating the guidelines as merely advisory. Cf. United States v. Hammoud, 381 F.3d 316, 354 (4th Cir.2004) (en banc) (recommending “that district courts within the Fourth Circuit announce, at the time of imposing a guidelines sentence, a sentence pursuant to 18 U.S.C.A. § 3553(a), treating the guidelines as advisory only”), cert. granted, judgment vacated, — U.S. —, 125 S.Ct. 1051, 160 L.Ed.2d 997 (2005). Thus, although it is certainly possible that Hughes will receive the same sentence on remand, there is nothing in the record to compel such a conclusion. This possibility is not enough to dissuade us from noticing the error. IV. As noted in Part III.A., the first step for sentencing courts is to determine the range prescribed by the guidelines after making such findings of fact as are necessary. Here, the district court has already determined that the guideline range for Hughes’ convictions is 41 to 51 months (based on an Offense Level of 22 and a Criminal History Category of I). Hughes challenges this calculation on a number of grounds. Because the district court must consider the correct guideline range before imposing" } ]

[ { "docid": "22769710", "title": "", "text": "129 F.3d 233, 239 (1st Cir.1997). Conviction for conspiracy did not require proof that Conatser assaulted a particular inmate without justification, only that he joined in the conspiracy that had such assaults as one of its objects. We find there was sufficient evidence from which a reasonable juror could conclude Conatser was a member of the conspiracy, and therefore affirm his conviction on count 1. III. Sentences imposed post-Booker are reviewed for procedural and substantive reasonableness. United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Williams, 432 F.3d 621, 623 (6th Cir.2005). Appellate courts must “first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall v. United States, — U.S. —, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also 18 U.S.C. § 3553(a). If procedurally sound, we review the substantive reasonableness of the sentence under an abuse-of-discretion standard. Id. at 594; see also Rita v. United States, — U.S. —, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007). As we have recognized and Rita made explicit, reasonableness is an appellate standard of review. United States v. Wilms, 495 F.3d 277, 280-82 (6th Cir.2007); United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2006). A sentence may be considered substantively unreasonable when the district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor. United States v. Webb, 403 F.3d 373, 385 (6th Cir.2005), cert. denied, 546 U.S. 1126, 126 S.Ct. 1110, 163 L.Ed.2d 919 (2006). A properly calculated advisory guidelines range represents the starting point for substantive-reasonableness review because it is one of the § 3553(a) factors and because the guidelines purport to take into consideration most, if" }, { "docid": "23419288", "title": "", "text": "judge erred in reducing Hammad’s sentence below the recommended Sentenc ing Guidelines range. This cross-appeal causes us once again to consider what makes a federal sentence “reasonable” after United States v. Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (“The courts of appeals review sentencing decisions for unreasonableness.”). For the reasons discussed below, we hold that, under our precedent, Hammad’s sentence represents an unreasonable downward variance from his recommended guideline range and, as a result, we remand for re-sentencing. In United States v. Green, 436 F.3d 449, 455-56 (4th Cir.2006), we held that to sentence a defendant, district courts must (1) properly calculate the sentence range recommended by the Sentencing Guidelines; (2) determine whether a sentence within that range and within statutory limits serves the factors set forth in [18 U.S.C.] § 3553(a) and, if not, select a sentence that does serve those factors; (3) implement mandatory statutory limitations; and (4) articulate the reasons for selecting the particular sentence, especially explaining why a sentence outside of the Sentencing Guideline range better serves the relevant sentencing purposes set forth in § 3553(a). Id. We also emphasized that any variance from the Guidelines range must be based on the § 3553(a) factors and further indicated that, for sentences falling outside of the Guidelines range, a district court must provide an adequate statement of reasons for the variance and rely on permissible factors in making the variance. Id. at 456-57. Finally, we noted that a reasonable sentence cannot give “excessive weight” to any relevant factor and must “effectn a fair and just result.” Id. at 457. We later enhanced this understanding of reasonableness in United States v. Moreland, 437 F.3d 424 (4th Cir.2006), noting that, while the district court does not need to discuss the § 3553(a) factors in checklist fashion, the court must explain the reasoning behind any sentence, particularly sentences that vary from the range recommended by the Guidelines. Id. at 433. In particular, we held that “[t]he farther the court diverges from the advisory guideline range, the more compelling the reasons for the divergence must be.”" }, { "docid": "7248959", "title": "", "text": "as noted above, the government presented evidence that Mr. Paredes participated in the relocation of this scheme from Utah to Idaho. Similarly, although evidence that he concealed his identity or activities may have been relevant to a showing that the relocation was for the purpose of evading law enforcement, § 2Bl.l(b)(9)(A) contains no requirement of concealment, other than the relocation itself. B. Reasonableness After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review sentences for reasonableness. See United States v. Galarza-Payan, 441 F.3d 885, 887 (10th Cir.2006). Reasonableness review “necessarily encompasses both the reasonableness of the length of the sentence, as well as the method by which the sentence was calculated.” United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir.2006). A sentence imposed within a properly calculated Guidelines range is presumptively reasonable, but a defendant may rebut that presumption with a showing that the sentence is unreasonable under the factors set out in 18 U.S.C. § 3553(a). Id. Mr. Paredes argues that his sentence, which is at the bottom of the applicable Guidelines range, is unreasonable because the district court overemphasized the Guidelines and “failed to consider 18 U.S.C. § 3553 — either expressly or implicitly.” Aplt Br. at 20. But the court need not recite on the record each of the factors in § 3553(a): “We do not require a ritualistic incantation to establish consideration of a legal issue, nor do we demand that the district court recite any magic words to show us that it fulfilled its responsibility to be mindful of the factors that Congress has instructed it to consider.” United States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir.2006) (internal quotation marks omitted). The district court must, however, “provide sufficient reasons to allow meaningful appellate review of [its] discretionary sentencing decision[ ],” United States v. Sanchez-Juarez, 446 F.3d 1109, 1117 (10th Cir.2006), and where a defendant has raised a nonfrivo-lous argument that the § 3553(a) factors warrant a below-Guidelines sentence and has expressly requested such a sentence, we must be able to discern from the record that the" }, { "docid": "23331880", "title": "", "text": "$1,000 in violation of 18 U.S.C. § 1029(a)(2). Dalton pled guilty on March 1, 2004. On September 8, 2004, the district court sentenced him to a term of 105 months’ imprisonment, three years supervised release, restitution in the amount of $98,851.64, and a $100 special assessment under the then mandatory guidelines. Dalton appealed and this court remanded for resentencing in light of the Supreme Court’s intervening decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Dalton, 150 Fed.Appx. 219 (4th Cir.2005). On remand, the district court held a second sentencing hearing and re-sentenced Dalton to 105 months’ imprisonment under the advisory guidelines. Dalton now appeals the corrected sentence. II. A. Imposing a post-Booker sentence under the advisory guidelines is a multi-step process. United States v. Moreland, 437 F.3d 424, 432 (4th Cir.2006). First, the district court “must correctly determine, after making appropriate findings of fact, the applicable guidelines range.” Id. The court then considers whether a sentence within that range “serves the factors set forth in § 3553(a) and, if not, select[s] a sentence that does serve those factors.” United States v. Green, 436 F.3d 449, 456 (4th Cir.2006). In selecting a sentence outside the advisory guidelines range, the court should first consider whether appropriate grounds for departure exist. United States v. Davenport, 445 F.3d 366, 370 (4th Cir.2006); Moreland, 437 F.3d at 432. When “an appropriate basis for departure exists, the district court may depart.” Moreland, 437 F.3d at 432. “If the resulting departure range still does not serve the factors set forth in § 3553(a),” the court may impose a variance sentence. Davenport, 445 F.3d at 370. B. The district court in this case granted the government’s motion for upward departure on the ground that Dalton’s criminal history category inadequately reflected his actual criminal history. See U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 4A1.3 (2006). Because the district court properly imposed a departure sentence before considering a variance sentence, Davenport, 445 F.3d at 370, this case presents no question as to whether a variance sentence would be appropriate." }, { "docid": "22786291", "title": "", "text": "63 (1997). The central concern of the ex post facto prohibition is “the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver, 450 U.S. at 30, 101 S.Ct. 960. The clause seeks to ensure “that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed,” and it guards against “arbitrary and potentially vindictive legislation.” Id. at 28-29, 101 S.Ct. 960. Ex Post Facto challenges to the retroactive application of Booker have been universally rejected by the federal courts. See, e.g., United States v. Austin, 432 F.3d 598, 599-600 (5th Cir.2005) (per curiam); United States v. Vaughn, 430 F.3d 518, 524-25 (2d Cir.2005), petition for cert. filed, No. 05-9499 (U.S. Mar. 1, 2006); United States v. Perez-Ruiz, 421 F.3d 11, 15 (1st Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1092, 163 L.Ed.2d 907 (2006); United States v. Dupas, 419 F.3d 916, 919-21 (9th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1484, 164 L.Ed.2d 261 (2006); United States v. Jamison, 416 F.3d 538, 539 (7th Cir.2005). We, likewise, reject Davenport’s claim. When he committed the crime, Davenport was on notice that the maximum statutory penalty was 15 years; this is all that is required to satisfy the concerns of fair notice embodied by the Ex Post Facto Clause. See Austin, 432 F.3d at 599-600. B. Davenport next challenges his ten-year sentence as unreasonable. See United States v. Booker, 543 U.S. 220, 260-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Green, 436 F.3d 449, 456-57 (4th Cir.2006). For the reasons set forth below, we vacate and remand for resentencing. 1. This court has previously described the necessary procedure for imposing sentence under the now-advisory sentencing guidelines: First, the court must correctly determine, after making appropriate findings of fact, the applicable guideline range. Next, the court must determine whether a sentence within that range serves the factors set forth in § 3553(a) and, if not, select a sentence within statutory limits that does serve those factors. In" }, { "docid": "22712299", "title": "", "text": "at base, an evaluation of whether the sentencing court properly considered the § 3553(a) factors, as it is required to do. Id. at 261. Accordingly, a contention that the district court imposed an unreasonable sentence is itself a contention that the court erred under § 3553(a). This is hardly a novel way for a party to assert error on appeal. Parties often frame their allegations of error in terms of the appellate standard of review — for example, by claiming that the district court abused its discretion in granting or denying certain relief. We do not lack appellate jurisdiction simply because a party invokes the appropriate standard of review. Accordingly, we turn to Montes-Pineda’s challenges to his sentence. III. A sentence after Booker may be unreasonable for both procedural and substantive reasons. “A sentence may be procedurally unreasonable, for example, if the district court provides an inadequate statement of reasons.... A sentence may be substantively unreasonable if the court relies on an improper factor or rejects policies articulated by Congress or the Sentencing Commission.” See United States v. Moreland, 437 F.3d 424, 434 (4th Cir.2006) (citations omitted). Montes-Pineda challenges his sentence on both substantive and procedural grounds. We reject both arguments. A. As we have held repeatedly, a sentence within a properly calculated advisory Guidelines range is presumptively reasonable. United States v. Johnson, 445 F.3d 339, 341, 2006 WL 893594, at *2 (4th Cir. Apr.7, 2006); Moreland, 437 F.3d at 433; United States v. Green, 436 F.3d 449, 457 (4th Cir.2006). “[A] defendant can only rebut the presumption by demonstrating that the sentence is unreasonable when measured against the § 3553(a) factors.” United States v. Sharp, 436 F.3d 730, 738 (7th Cir.2006). Here, the § 3553(a) factors clearly support the reasonableness of Montes-Pineda’s sentence. The reentry of an ex-felon is a serious offense for which Congress has seen fit to impose a statutory maximum sentence of 20 years. See 8 U.S.C. § 1326(b)(2). And Montes-Pineda is a chronic offender for the crime of his conviction: he concedes that he has illegally reentered this country at least three separate times after" }, { "docid": "8512954", "title": "", "text": "imposed. Jeremiah appeals, arguing that the District Court was required to consider the potential federal/state sentencing disparity under 18 U.S.C. § 3553(a)(6) (2000) and that the court’s failure to do so resulted in an unreasonable sentence. We affirm. Although application of the Sentencing Guidelines is- no longer mandatory, district courts are still required to consult the Guidelines and take them into account in calculating a defendant’s sentence. United States v. Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). A district court must calculate a defendant’s advisory Guidelines sentencing range based on his total offense level, criminal history category, and any appropriate departures. See United States v. Shannon, 414 F.3d 921, 923 (8th Cir.2005). The court may also vary from the advisory Guidelines range based on the factors set forth in 18 U.S.C. § 3553(a) as long as the resulting sentence is reasonable. See Booker, 543 U.S. at 261, 125 S.Ct. 738; United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir.2005). Proper application of the Guidelines “remains the critical starting point” for fashioning a reasonable sentence under § 3553(a), United States v. Lindquist, 421 F.3d 751, 753 (8th Cir.2005), and a sentence within the properly calculated Guidelines range is presumed to be reasonable, see United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.), cert. denied, — U.S.-•, 126 S.Ct. 840, 163 L.Ed.2d 715 (2005). In determining whether a district court properly calculated a defendant’s Guidelines sentencing range, we review the court’s findings of fact for clear error and its interpretation and application of the Guidelines de novo. See Mashek, 406 F.3d at 1017. We review the ultimate sentence for reasonableness in light of the factors described in § 3553(a). See United States v. May, 413 F.3d 841, 844 (8th Cir.), cert. denied, — U.S.-, 126 S.Ct. 672, 163 L.Ed.2d 541 (2005). The District Court properly calculated Jeremiah’s Guidelines sentencing range, and Jeremiah does not argue otherwise. Rather, Jeremiah’s sole argument on appeal is that in order to impose a reasonable sentence-, the District Court was required by § 3553(a)(6) to consider the sentences imposed in" }, { "docid": "21952229", "title": "", "text": "sentence for reasonableness. Booker, 543 U.S. at 260-61, 125 S.Ct. 738; United States v. Richardson, 437 F.3d 550, 553 (6th Cir.2006). This court has held that this entails consideration “not only [of] the length of the sentence but also the factors evaluated and the procedures employed by the district court in reaching its sentencing determination.” United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1110, 163 L.Ed.2d 919 (2006). As such, a sentence may be unreasonable “when the district judge fails to ‘consider’ the applicable Guidelines range or neglects to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration.” Id. (footnote omitted). While no longer bound by the sentencing guidelines, district courts nonetheless must consider the applicable guideline range together with the other statutory factors. Booker, 543 U.S. at 245-46, 125 S.Ct. 738; 18 U.S.C. § 3553(a)(4). A sentence that falls within a properly calculated advisory guideline range is credited with a rebuttable presumption of reasonableness. United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006); see also Webb, 403 F.3d at 385 n. 9 (rejecting argument that within-guideline sentence is per se reasonable). This rebuttable presumption does not relieve the district court of the obligation to consider other relevant statutory factors or sufficiently articulate its reasoning so as to permit reasonable appellate review. Richardson, 437 F.3d at 554. At the same time, it is not necessary that the district court explicitly reference each of the § 3553(a) factors. Id.; see also Williams, 436 F.3d at 708 (no “ritual incantation” required). Review of the sentencing transcript reveals that the district court properly calculated the guideline range, explicitly considered the other relevant sentencing factors, and articulated in an exemplary manner its reasoning in determining the sentence and rejecting defendant’s plea for further leniency. The district court stated, in part, as follows: That brings me to the final sentencing requirement required by Booker, which is to determine whether Section 3553(a) sentencing factors dictate a sentence different from the" }, { "docid": "23012529", "title": "", "text": "96 months.... I haven’t imposed the maximum probably because you’ve earned those certificates. And I hope it’s not a game with you. Therefore, the court imposed a sentence of 8 years of imprisonment (18 months more than the high end of the guidelines range), 3 years of supervised release, and monetary penalties amounting to $300. Jackson timely appealed, challenging only his sentence. II. Discussion We review Jackson’s sentence for reasonableness under a deferential abuse-of-discretion standard. United States v. Omole, 523 F.3d 691, 696 (7th Cir.2008) (citing United States v. Booker, 543 U.S. 220, 260-63, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Gall v. United States, — U.S.-, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). Although a sentence that falls within a properly calculated guidelines range is entitled to a presumption of reasonableness, there is no corresponding presumption of unreasonableness for a non-guidelines sentence. Id. (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462-63, 168 L.Ed.2d 203 (2007), and Gall, 128 S.Ct. at 597). Our review involves a two-step process. First, we ensure that the sentencing judge did not commit any “significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.” Gall, 128 S.Ct. at 597; see also Omole, 523 F.3d at 697. If the sentence is procedurally sound, we then evaluate its substantive reasonableness. The sentencing court must apply the factors set forth in 18 U.S.C. § 3553(a) in deciding whether to impose a sentence within the advisory guidelines range. United States v. Miranda, 505 F.3d 785, 791 (7th Cir.2007). Those factors, which are still mandatory after Booker (unlike the Sentencing Guidelines themselves), “are broad, vague, and open-ended,” leaving the sentencing judge with “considerable discretion to individualize the sentence to the offense and offender as long as the judge’s reasoning is consistent with § 3553(a).” United States v. Wachowiak, 496 F.3d 744, 748 (7th" }, { "docid": "23558502", "title": "", "text": "offense. . See, e.g., United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.2006) (per curiam); United States v. Green, 436 F.3d 449, 457 (4th Cir.2006); United States v. Mykytiuk, 415 F.3d 606 (7th Cir.2005); United States v. Lincoln, 413 F.3d 716 (8th Cir.2005). CLAY, Circuit Judge, dissenting. The majority opinion in this case represents the latest step in an ongoing push within this Circuit to subvert United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and to make the sentencing Guidelines de facto mandatory. This Court took its first major step in this direction when it purportedly held in United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006), that on appeal, this Circuit would now credit sentences “properly calculated under the Guidelines with a rebuttable presumption of reasonableness.” While the Williams Court erred in the first instance by holding that a sentence within the Guidelines range is presumptively reasonable on appeal, the majority has now alarmingly compounded that error by holding that district courts may consider a sentence within the Guidelines range to be presumptively reasonable. The majority’s holding in this case directly contravenes Booker, 18 U.S.C. § 3553(a), and this Court’s prior holdings that district courts are to consider all the § 3553(a) factors in arriving at a sentence sufficient to, but not greater than necessary, to comply with the purposes of 18 U.S.C. § 3553(a). In excising “the provision [of the Sentencing Guidelines] that require[d] sentencing courts to impose a sentence within the applicable Guidelines range (in the absence of circumstances that justify a departure),” Booker, 543 U.S. at 259, 125 S.Ct. 738, the Booker Court left intact § 3553(a), which requires that district courts “take account of the Guidelines together with other sentencing goals” of § 3553(a) in order to arrive at the appropriate sentence for each individual defendant. Id. After providing the district courts with guidance on how to determine what sentence to impose, the Supreme Court went on to state that sentencing decisions are appealable regardless of whether the sentence falls within or outside the applicable Guidelines range;" }, { "docid": "22621970", "title": "", "text": "sentenced under the advisory Sentencing Guidelines, and we, thus review his sentence for reasonableness. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 765, 160 L.Ed.2d 621 (2005); United States v. Green, 436 F.3d 449, 456 (4th Cir.2006). “The reasonableness of a sentence ultimately will turn on the particular factors of each case,” but “certain principles would appear to be universally applicable.” United States v. Moreland, 437 F.3d 424, 433 (4th Cir.2006). Foremost among these is that a sentence within the proper advisory Guidelines range is presumptively reasonable. See id.; Green, 436 F.3d at 457. This approach to post-Booker appellate review is required for three basic reasons: the process by which the Guidelines were established, their incorporation of Congress’s sentencing objectives, and the individualized factfinding required to apply them. While we stated in both Moreland and Green that Guidelines sentences are presumptively reasonable, neither case involved a sentence within a properly calculated Guidelines range. See Moreland, 437 F.3d at 435 (variance sentence); Green, 436 F.3d at 458 (incorrectly calculated Guidelines range). Because the instant case presents our first occasion to apply this presumption, we take this opportunity to briefly explore the three justifications outlined above in greater detail. A. The first reason that Guidelines sentences are presumptively reasonable under Booker is the legislative and administrative process by which they were created. Dissatisfied with widespread sentencing disparities among offenders who engaged in similar criminal conduct, Congress in the Sentencing Reform Act of 1984 established the United States Sentencing Commission and charged it with devising a set of determinate sentencing guidelines. See 18 U.S.C.A. § 3551 et seq. (West 2005); 28 U.S.C.A. § 991 et seq. (West 2005); Booker, 125 S.Ct. at 762; Mistretta v. United States, 488 U.S. 361, 366-70, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Though its goals were overarching, see 28 U.S.C.A. § 991(b)(1), Congress was hardly inattentive to detail, see Mistretta, 488 U.S. at 374-77, 109 S.Ct. 647. It instructed the Commission to craft a sentencing range “for each category of offense involving each category of defendant,” 28 U.S.C.A. § 994(b)(1), and to establish categories" }, { "docid": "23419287", "title": "", "text": "alleged terrorist groups] and the appellants, is that the appellants are Muslim in a post-9/11 world.” Appellant’s Br. at 88. This contention, however, misses the very obvious fact that defendants were accused of supporting LET, a terrorist group that supported the Taliban and Al-Qaeda, which were in direct conflict with the United States. The Executive branch has the right to focus its prosecutorial energies on alleged terrorists groups that present the most direct threat to the United States and its interests. Accordingly, we hold that the district court did not err in denying discovery on defendants’ selective prosecution claim because the available evidence demonstrates that legitimate prosecutorial factors motivated the government’s prosecutorial decisions. In short, we hold that all of the convictions in this case were supported by substantial evidence and were obtained without material error. We also hold that Khan’s and Chapman’s sentences were correctly imposed. Accordingly, we affirm all of the convictions for all three defendants and the sentences of Khan and Chapman. IV. The government cross-appeals Hammad’s sentence, arguing that the district judge erred in reducing Hammad’s sentence below the recommended Sentenc ing Guidelines range. This cross-appeal causes us once again to consider what makes a federal sentence “reasonable” after United States v. Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (“The courts of appeals review sentencing decisions for unreasonableness.”). For the reasons discussed below, we hold that, under our precedent, Hammad’s sentence represents an unreasonable downward variance from his recommended guideline range and, as a result, we remand for re-sentencing. In United States v. Green, 436 F.3d 449, 455-56 (4th Cir.2006), we held that to sentence a defendant, district courts must (1) properly calculate the sentence range recommended by the Sentencing Guidelines; (2) determine whether a sentence within that range and within statutory limits serves the factors set forth in [18 U.S.C.] § 3553(a) and, if not, select a sentence that does serve those factors; (3) implement mandatory statutory limitations; and (4) articulate the reasons for selecting the particular sentence, especially explaining why a sentence outside of the Sentencing Guideline range better" }, { "docid": "22786292", "title": "", "text": "L.Ed.2d 261 (2006); United States v. Jamison, 416 F.3d 538, 539 (7th Cir.2005). We, likewise, reject Davenport’s claim. When he committed the crime, Davenport was on notice that the maximum statutory penalty was 15 years; this is all that is required to satisfy the concerns of fair notice embodied by the Ex Post Facto Clause. See Austin, 432 F.3d at 599-600. B. Davenport next challenges his ten-year sentence as unreasonable. See United States v. Booker, 543 U.S. 220, 260-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Green, 436 F.3d 449, 456-57 (4th Cir.2006). For the reasons set forth below, we vacate and remand for resentencing. 1. This court has previously described the necessary procedure for imposing sentence under the now-advisory sentencing guidelines: First, the court must correctly determine, after making appropriate findings of fact, the applicable guideline range. Next, the court must determine whether a sentence within that range serves the factors set forth in § 3553(a) and, if not, select a sentence within statutory limits that does serve those factors. In doing so, the district court should first look to whether a departure is appropriate based on the Guidelines Manual or relevant case law.... If an appropriate basis for departure exists, the district court may depart. If the resulting departure range still does not serve the factors set forth in § 3553(a), the court may then elect to impose a non-guideline sentence (a “variance sentence”). The district court must articulate the reasons for the sentence imposed, particularly explaining any departure or variance from the guideline range. The explanation of a variance sentence must be tied to the factors set forth in § 3553(a) and must be accompanied by findings of fact as necessary. The district court need not discuss each factor set forth in § 3553(a) in checklist fashion; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less. United States v. Moreland, 437 F.3d 424, 432 (4th Cir.2006) (citations, internal quotation marks, & alterations omitted); see United States v. Foreman, 436 F.3d" }, { "docid": "22718619", "title": "", "text": "1291, but noting the reviewable issues were limited); S. Rep. 98-225, at 150 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3333 (\"The reason given for unavailability of appellate review of sentences under current law is the fact that sentencing judges have traditionally had almost absolute discretion to impose any sentence legally available in a particular case.”). After the adoption of the SRA, judges no longer exercised near unfettered discretion. Therefore, the narrow pre-SRA review under a different sentencing regime may provide uncertain guidance. In any event, Booker states sentencing judges must \"take account of the Guidelines together with other sentencing goals.” 543 U.S. 220, 125 S.Ct. 738, 764, 160 L.Ed.2d 621 (2005). . Although only the Courts of Appeals for the Eighth and Eleventh Circuits have specifically addressed jurisdiction, United States v. Frokjer, 415 F.3d 865, 875 n. 3 (8th Cir.2005); United States v. Martinez, 434 F.3d 1318, 1320 (11th Cir.2006), other courts similarly apply the reasonableness standard of review. United States v. Benedetti, 433 F.3d 111, 120 (1st Cir.2005) (contemplating review of “all sentences imposed post-Booker ... for reasonableness based on the factors enumerated in section 3553(a)”); United States v. Crosby, 397 F.3d 103, 114-16 (2d Cir.2005) (describing appellate review of both within— and outside-guidelines sentences for reasonableness after Booker), abrogated on other grounds by United States v. Fagans, 406 F.3d 138, 142 (2d Cir.2005); United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir.2005) (noting after Booker, district courts must consider the § 3553(a) factors and calculate the appropriate guidelines range, and the imposed sentence will be affirmed \"as long as it is within ' the statutorily prescribed range ... and is reasonable”) (citations omitted); United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.2005) (holding sentences will be reviewed for reasonableness post -Booker, including those imposed “within a properly calculated Guideline range”); United States v. McBride, 434 F.3d 470, 476-77 (6th Cir.2006) (holding the court would “review ... a defendant’s claim that his sentence is excessive based on the district court’s unreasonable analysis of the section 3553(a) factors in their totality” based on \"Booker's mandate”); United States" }, { "docid": "22953200", "title": "", "text": "challenges the overall sentence as unreasonable. He argues that the district court improperly determined the guideline range by adding two levels for weapon possession and another two levels for obstruction of justice while denying a downward role adjustment. Denton also argues that the sentence was unreasonable in light of his physical and mental condition. The government first argues that we lack jurisdiction to review Den-ton’s sentence under 18 U.S.C. § 3742(a)(1) because it was within the advisory guideline range and was properly calculated. This overlooks the teaching of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which preserved the guidelines as advisory only and replaced the restrictive de novo standard of appellate review. Booker, 125 S.Ct. at 756-57. While a guideline sentence is presumptively reasonable, a sentencing court must go further in its analysis, for it must consider the factors in section 3553(a) before imposing sentence. Id. at 764-65; United States v. Red Elk, 426 F.3d 948, 951 (8th Cir.2005). The final sentence is subject to reasonableness review, Booker, 125 S.Ct. at 765, whether it is within or outside the advisory guideline range. United States v. Mickelson, 433 F.3d 1050, 1055 (8th Cir.2006) (“appellate review for sentences both within or outside the guidelines fits within what Congress would have intended in light of the [Supreme] Court’s constitutional holding [in Booker]”) (internal citation omitted); see also United States v. Frokjer, 415 F.3d 865, 875 n. 3 (8th Cir.2005) (an unreasonable sentence within the guideline range “would be imposed ‘in violation of law’ within the meaning of § 3742(a)”). The jurisdiction argument advanced by counsel for appellee would effectively “restore the rigidity in sentencing” that Booker held to violate the Sixth Amendment. See Mickelson, 433 F.3d at 1055. We start by considering whether the district court properly calculated the guideline range, then whether it erred in any departure decision, and then whether the sentence imposed was reasonable. United States v. Haack, 403 F.3d 997 (8th Cir.2005). The district court applied a two level enhancement under § 2Dl.l(b)(l) because Denton possessed a firearm in connection with his" }, { "docid": "22896726", "title": "", "text": "predatory sexual conduct by adults.” Vang, 128 F.3d at 1069. It would be anomalous to allow prosecution of those individuals who successfully place a specific, identified child in danger, yet set free those who possess the prohibited intent, but are prevented from placing a real child in danger by effective law enforcement. E. Finally, Kelly challenges the district court’s imposition of a 63-month sentence. We review a district court’s sentence for reasonableness. See United States v. Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir.2005). Booker requires a district court to calculate the appropriate guidelines range, making the requisite, appropriate factual findings and considering whether any authorized departures may be appropriate. See United States v. Davenport, 445 F.3d 366, 370 (4th Cir.2006). The district court should then determine an appropriate sentence, taking into account both the advisory sentencing guidelines range and the factors set forth in 18 U.S.C. § 3553(a). Id. The sentence must be “sufficient, but not greater than necessary” to achieve the goals of sentencing. § 3553(a). And importantly, “a sentence within the proper advisory Guidelines range is presumptively reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir.2006); see Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2462-68, 168 L.Ed.2d 203 (2007) (upholding a presumption of reasonableness for sentences within guidelines range). In this case, the district court properly calculated the guidelines range as between 51 and 63 months, based on Kelly’s offense level of 24 and criminal history category of I. It then imposed a sentence of 63 months, the top of the advisory guidelines range. In doing so, the district court explicitly rejected Kelly’s argument that because no actual minor child was involved and because Kelly’s prior conviction was 22 years prior to the charged crime, Kelly should be sentenced at the lower end of the guidelines range. On the record presented, the district court appropriately found that Kelly’s “predilection for sexual violence” and the fact that Kelly took substantial steps toward having sex with a minor militated against" }, { "docid": "22712300", "title": "", "text": "United States v. Moreland, 437 F.3d 424, 434 (4th Cir.2006) (citations omitted). Montes-Pineda challenges his sentence on both substantive and procedural grounds. We reject both arguments. A. As we have held repeatedly, a sentence within a properly calculated advisory Guidelines range is presumptively reasonable. United States v. Johnson, 445 F.3d 339, 341, 2006 WL 893594, at *2 (4th Cir. Apr.7, 2006); Moreland, 437 F.3d at 433; United States v. Green, 436 F.3d 449, 457 (4th Cir.2006). “[A] defendant can only rebut the presumption by demonstrating that the sentence is unreasonable when measured against the § 3553(a) factors.” United States v. Sharp, 436 F.3d 730, 738 (7th Cir.2006). Here, the § 3553(a) factors clearly support the reasonableness of Montes-Pineda’s sentence. The reentry of an ex-felon is a serious offense for which Congress has seen fit to impose a statutory maximum sentence of 20 years. See 8 U.S.C. § 1326(b)(2). And Montes-Pineda is a chronic offender for the crime of his conviction: he concedes that he has illegally reentered this country at least three separate times after being deported. The district court’s sentence, which is at the low end of the applicable advisory Guidelines range, does not seem unreasonable in light of the nature of the offense and the need to deter Montes-Pineda in the future. Montes-Pineda, however, raises several arguments against the reasonableness of his sentence, such as his noncriminal motivation (he illegally reentered to reunite with his children and to obtain necessary medical treatment), the age of his aggravated felony (which occurred fourteen years ago), and the fact that he has never before served a lengthy prison sentence. Although these considerations are relevant under § 3553(a), we need not resolve here whether they would suffice to demonstrate the reasonableness of a below-Guidelines sentence in another case, because they do not show that the sentence Montes-Pineda received was un reasonable. Most importantly, these factors — which Montes-Pineda never contends distinguishes his case from others’ — do not necessarily outweigh the seriousness of Montes-Pineda’s offense and his undisputed recidivism. Montes-Pineda also alleges that his sentence creates an “unwarranted sentencing disparity] among defendants,”" }, { "docid": "22621969", "title": "", "text": "the quantity of a substance involved.” Relying on this provision, the presentence report totaled the amount of cocaine in defendant’s various charges, and recommended a base offense level of 32. It also proposed a three-level reduction for acceptance of responsibility, for a final offense level of 29. Combined with a criminal history category of II, the applicable Guidelines range was 97 to 121 months in prison. Johnson did not object to this Guidelines calculation, but contended that, with the Guidelines now advisory, see United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 756-57, 160 L.Ed.2d 621 (2005), the district court should not apply § 3D1.2’s drug quantity grouping provision. The district court disagreed, concluding that Johnson’s suggestion would “gut[] the guidelines.” Following the recommendation in the presentence report, the district court instead determined that the proper range was 97 to 121 months. It thereafter sentenced defendant on each count to 97 months in prison and five years of supervised release, with the sentences to run concurrently. Defendant noted a timely appeal. II. Defendant was sentenced under the advisory Sentencing Guidelines, and we, thus review his sentence for reasonableness. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 765, 160 L.Ed.2d 621 (2005); United States v. Green, 436 F.3d 449, 456 (4th Cir.2006). “The reasonableness of a sentence ultimately will turn on the particular factors of each case,” but “certain principles would appear to be universally applicable.” United States v. Moreland, 437 F.3d 424, 433 (4th Cir.2006). Foremost among these is that a sentence within the proper advisory Guidelines range is presumptively reasonable. See id.; Green, 436 F.3d at 457. This approach to post-Booker appellate review is required for three basic reasons: the process by which the Guidelines were established, their incorporation of Congress’s sentencing objectives, and the individualized factfinding required to apply them. While we stated in both Moreland and Green that Guidelines sentences are presumptively reasonable, neither case involved a sentence within a properly calculated Guidelines range. See Moreland, 437 F.3d at 435 (variance sentence); Green, 436 F.3d at 458 (incorrectly calculated Guidelines range). Because the" }, { "docid": "10780714", "title": "", "text": "parts of the text and commentary Boulware is referring, but the applicable commentary states, without any limitation, that § 2J1.3 “applies to perjury ... generally prosecuted under the referenced statutes,” of which § 152 is one. U.S.S.G. § 2J1.3 cmt. background. III. Boulware next argues that the district court did not offer sufficient reasons to show that it made an individual assessment of the specific circumstances in her case in light of the relevant factors under 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2009) and the arguments presented. The government concedes that the district court committed this procedural error, see United States v. Carter, 564 F.3d 325, 330 (4th Cir.2009) (“Regardless of whether the district court imposes an above, below, or within-Guidelines sentence, it must place on the record an ‘individualized assessment’ based on the particular facts of the case before it.”), but nonetheless argues that the error was harmless. We are, of course, not bound by the government’s concession, see United States v. Rodriguez, 433 F.3d 411, 414 n. 6 (4th Cir.2006), but even assuming that the court’s explanation was insufficient, we agree with the government’s assertion that any error was harmless. Since the Supreme Court issued its Booker decision, the Sentencing Guidelines are no longer mandatory but rather are “effectively advisory.” United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). When sentencing criminal defendants post -Booker, district courts first must correctly calculate the defendant’s sentencing range under the Sentencing Guidelines. See Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The court must then allow the parties to argue for what they believe to be an appropriate sentence and consider those arguments in light of the factors set forth in 18 U.S.C.A. § 3553(a). See id. at 49-50, 128 S.Ct. 586; United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 1312, 173 L.Ed.2d 584 (2009). Sentencing courts are statutorily required to state their reasons for imposing a particular sentence. See 18 U.S.C.A. § 3553(c) (West Supp.2009)." }, { "docid": "11759972", "title": "", "text": "history. The government contends Rouillard’s extensive and dangerous criminal past and repeated violations of the terms of his probation justify the upward departure, however, the government concedes no factors justify the extent of the upward variance, which the government alleges results in unwarranted sentencing disparities. II. DISCUSSION After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing court first must calculate the advisory Guidelines sentencing range. United States v. Ture, 450 F.3d 352, 356 (8th Cir.2006). After the Guidelines range has been calculated, the sentencing court should consider whether any traditional departures are appropriate in determining the Guidelines range sentence. United States v. Bueno, 443 F.3d 1017, 1022 (8th Cir.2006). Calculating an appropriate Guidelines range sentence is “the critical starting point,” United States v. Mashek, 406 F.3d 1012, 1016 n. 4 (8th Cir.2005), to appraise any sentence because the Guidelines incorporate the other § 3553(a) factors and “are the product of years of careful study,” United States v. McDonald, 461 F.3d 948, 952-53 (8th Cir.2006) (quoting United States v. Shafer, 438 F.3d 1225, 1227 (8th Cir.2006)), petition for cert. filed, — U.S.L.W. - (Nov. 28, 2006) (No. 06-8086). Only after the sentencing court has calculated a Guidelines range sentence should the court consider the other factors set forth at § 3553(a) to determine whether to impose a non-Guidelines range sentence. United States v. Haack, 403 F.3d 997, 1003 (8th Cir.), cert. denied, — U.S. ——, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). A. Guidelines Range Calculation We review de novo the district court’s interpretation and application of the advisory Guidelines and review for clear error its findings of fact. United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir.2005). Before departing, the district court concluded Rouillard’s Guidelines sentencing range was 30 to 37 months’ imprisonment. Both Rouillard and the government agree the district court properly calculated the advisory Guidelines sentencing range before it departed. Accordingly, we only review the departure and variance. B. Departure We review for abuse of discretion any departures from the advisory sentencing Guidelines. Mashek, 406 F.3d at 1017. “Although" } ]

[ { "docid": "3401123", "title": "", "text": "to reveal the defendants’ (including Friedman) fraudulent activity, i. e. the various breaches of their fiduciary duties. We find nothing, and have been shown nothing, in the Exchange Act or the Regulations thereunder which requires such material be revealed in the proxy statements. See Regulation 14a-3; Schedule 14A; Mills v. Sarjem Corp., 133 F.Supp. 753 (D.N.J.1955). Cf. Hoover v. Allen, 241 F.Supp. 213, 230 (S.D.N.Y.1965). Even if these omissions are violations of section 14(a), plaintiff has still not made out a cause of action under this section. There is no insurer liability under section 14(a); the alleged violation of the proxy rules does not give rise to a cause of action under this section unless there is some causal connection between the violation and the injury. Barnett v. Anaconda Co., 238 F.Supp. 766, 770-774 (S.D.N.Y.1965). See Mills v. Sarjem Corp., supra; Lapchak v. Sisto, CCH, Fed.See.L.Rep. ¶ 90, 721 (S.D.N.Y.1955). The complaint as a whole fails to allege any damage that could result from the alleged proxy violations. Plaintiff claims that shareholders relied upon the proxy statements by selling their shares to defendants, (complaint para. 4). In Hoover v. Allen, 241 F.Supp. 213, 230-231 (S.D.N.Y.1965), Judge Her-lands dismissed the exact claim presented here. He noted: The only claimed injury is said to have resulted from the circumstances that statements in the proxies caused stockholders other than plaintiffs to sell stock. The fact that the piece of paper upon which the allegedly misleading statements appeared was a proxy statement is irrelevant to the damage claimed. * * * In the absence of some allegations of infringement upon corporate suffrage rights or some corporate action taken as a result of such infringement, no cause of action under section 14(a) has been made out. We are in accord. A proxy is neither a prospectus nor a registration statement. The sale or purchase of stock in reliance upon an allegedly misleading proxy does not state a cause of action under section 14(a). Plaintiff also claims that the shareholders were induced by the proxies to “ratify” the fraudulent acts of the defendants. Again, we find" } ]

[ { "docid": "23669905", "title": "", "text": "While I do not read the complaint to allege that plaintiff has suffered any economic injury or that any particular corporate action was taken as a result of the defective proxy solicitations, in my view a plaintiff states a claim for injunctive relief when he alleges that the exercise of his franchise has been impaired by a series of solicitations of proxies which violated Section 14(a) and that further violations are threatened for the future. The theory of corporate democracy which underlies the private right to enforce Section 14(a), J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), is incompatible with the notion that a shareholder has an enforceable federal right to honest proxy materials only when transactions approved by a shareholder vote in which he was misled has resulted in economic injury to him. I do not question the validity of those cases which hold that a causal relationship between a violation of Section 14 (a) and a corporate transaction causing harm to a shareholder needs to be established in order to recover money damages. See Hoover v. Allen, 241 F.Supp. 213 (S.D.N.Y.1965); Barnett v. Anaconda Co., 238 F.Supp. 766, 772 (S.D.N.Y.1965); Cohen v. Colvin, 266 F.Supp. 677 (S.D.N.Y.1967). Cf. Mills v. Sarjem Corp., 133 F.Supp. 753 (D.N.J.1955). The prayer here for only injunctive relief makes this a different case. Defendants’ motion to dismiss Count IV will be denied. Section 9 Of The Exchange Act Plaintiff asserts a claim on behalf of himself and the class he seeks to represent for injunctive relief and damages based on an alleged violation of Section 9(a) of the Exchange Act, 15 U.S.C. § 78i(a). Section 9(a) prohibits a broad range of devices designed to manipulate the open market price of a registered security. Section 9(e) provides the remedy for one injured by a Section 9(a) violation: (e) Any person who willfully participates in any act or transaction in violation of subsections (a), (b) or (c) of this section, shall be liable to any person who shall purchase or sell any security at a price which" }, { "docid": "10657380", "title": "", "text": "claimed injury is said to have resulted from the circumstance that statements in the proxies caused stockholders other than plaintiffs to sell stock. The fact that the piece of paper upon which the allegedly misleading statements appeared was a proxy statement is irrelevant to the damage claimed. * * * # * * “In the absence of some allegation of infringement upon corporate suffrage rights or some corporate action taken as a result of such infringement, no cause of action under section 14(a) has been made out.” Hoover v. Allen, supra, 241 F.Supp. at 230. See also Robbins v. Banner Industries, Inc., 285 F.Supp. 758, 762 (S.D.N.Y.1966). In Mills, the Supreme Court faced the question of what causal relationship must be shown between a materially misleading proxy statement and the asserted wrong. The Court concluded that “[w]here the misstatement or omission in a proxy statement has been shown to be ‘material,’ * * * that determination itself indubitably embodies a conclusion that the defect was of such a character that it might have been considered important by a reasonable shareholder who was in the process of deciding how to vote. This requirement that the defect have a significant propensity to affect the voting process is found in the express terms of Rule 14a-9, and it adequately serves the purpose of ensuring that a cause of action cannot be established by proof of a defect so trivial, or so unrelated to the transaction for which approval is sought, that correction of the defect or imposition of liability would not further the interests protected by § 14(a).” Mills v. Electric Auto-Lite Co., supra, 396 U.S. at 384, 90 S.Ct. at 621 (emphasis in original). Section 14 protects investors in their status as shareholders by providing a cause of action for misleading proxy statements which affect the corporate voting process. In order to state a cause of action under § 14(a), a stockholder must establish that he was damaged by an infringement of corporate suffrage rights. Therefore, a plaintiff can only establish a § 14(a) claim based on a purchase or sale of" }, { "docid": "10262046", "title": "", "text": "exchange.’ H.R. Rep.No.1383, 73d Cong., 2d Sess. 13. It was intended to ‘control the conditions under which proxies may be solicited with a view to preventing the recurrence of abuses which . [had] frustrated the free exercise of the voting rights of stockholders.’ Id., at 14. ‘Too often proxies are solicited without explanation to the stockholders of the real nature of the question for which authority to cast his vote is sought.’ S.Rep.No.792, 73d Cong., 2d Sess., 12.” J. I. Case Co. v. Borak, 377 U.S. 426, 431, 84 S.Ct. 1555, 1559, 12 L.Ed.2d 423 (1964). [Emphasis added.] Unlike § 10(b), which is a general anti-fraud provision, § 14(a) is aimed only at misleading statements and omissions which distort the voting process and which might affect a shareholder’s decision on how he will cast his vote. Therefore, in order to make out a cause of action under § 14(a) a plaintiff must allege an injury resulting from the infringement of his corporate suffrage rights. If he alleges that he was injured by a corporate transaction, that transaction, if it is to give rise to a § 14(a) claim, must have been approved on the basis of misleading proxy material. In re Penn Central Securities Litigation, 347 F.Supp. 1327, 1341-1342 (E.D.Pa.1972); Hoover v. Allen, 241 F.Supp. 213 (S.D.N.Y.1965). See also Robbins v. Banner Industries, Inc., 285 F.Supp. 758, 762 (S.D.N.Y.1966). Count VII fails to satisfy these criteria and therefore must be dismissed. Nowhere in Count VII is there any allegation of any injury to plaintiffs’ corporate suffrage rights or to those of the shareholder class they seek to represent. Even an extremely liberal reading of Count VII fails to disclose such an allegation. In their response to the motions to dismiss, plaintiffs suggest (if we understand their argument) that the GSCMacco merger should have been submitted to the shareholders for their approval and since it was not, the shareholders were denied their rights of appraisal, a denial which somehow makes proxy material touching on the merger false and misleading. Even assuming, as we do not, that this argument rests on a" }, { "docid": "20962758", "title": "", "text": "they would receive upon the completion of the amalgamation. In Hoover v. Allen, supra, the Court dismissed a complaint under Section 14(a) when it failed to see how the corporation had been damaged as a result of a proxy statement. The Court held that some allegation of infringe-' ment upon corporate suffrage rights or some corporate action taken as a result of such statement was necessary to sustain an action under Section 14(a). Id. 241 F.Supp. at 230. And in Barnett v. Anaconda Co., supra, the Court was quite concerned with the element of causation. The Court felt that in order to sustain a cause of action under Section 14(a) it must be shown that the transaction under attack resulted from the issuance of the misleading proxy statement. Stated in other terms, there must be a causal connection between the violation of Section 14(a) and the claimed damages. Id. 238 F.Supp. at 772. Turning to plaintiff’s complaint in this case, the Court fails to see how Fair-child was damaged as a result of the proxy statement of September 1, 1965. Even if there were material misstatements or material omissions of fact (which the Court seriously doubts), the Court fails to see how the corporation took any adverse action as a result of these statements and how it was damaged thereby. Plaintiff does not claim that the Fair-child shareholders would not have voted for the amalgation had the proxy statement set forth the facts which plaintiff claims it omitted. Nor does plaintiff claim that the action taken as a result of the proxy statement — the acquisition of Republic assets by Fairchild — resulted in any harm to Fairchild. To the contrary, all indications point to the fact that the amalgamation would prove quite beneficial to the corporation. The only “damages” allegedly suffered by the corporation were the “impermissible profits” made by the defendants on their Republic stock upon the amalgamation. However, this damage has no real causal connection either with the alleged wrongful omission from the proxy statement or with the corporate action taken as a result of the proxy" }, { "docid": "10657378", "title": "", "text": "proxy statement. Plaintiffs disagree with defendants on both points. They maintain that the complaints do allege the necessary causation under defendants’ test, and they contend that any injury which is proximately caused by a violation of § 14(a) is actionable thereunder. The Supreme Court has emphasized that the purpose of § 14 is to protect the integrity of corporate suffrage. “The purpose of § 14(a) is to prevent management or others from obtaining authorization for corporate action by means of deceptive or inadequate disclosure in proxy solicitation. The section stemmed from the congressional belief that ‘[f]air corporate suffrage is an important right that should attach to every equity security bought on a public exchange.’ HR Rep. No. 1383, 73d Cong., 2d Sess, 13. It was intended to ‘control the conditions under which proxies may be solicited with a view to preventing the recurrence of abuses which * * * [had] frustrated the free exercise of the voting rights of stockholders.’ Id., at 14. ‘Too often proxies are solicited without explanation to the stockholder of the real nature of the questions for which authority to cast his vote is sought.’ S.Rep. No. 792, 73d Cong, 2d Sess., 12.” J. I. Case Co. v. Borak, supra, 377 U.S. at 431, 84 S.Ct. at 1559. See also Mills v. Electric Auto-Lite Co., supra. Plaintiffs argue that § 14(a) affords a cause of action to a person who purchased, sold or retained stock in reliance upon false or misleading proxy statements. In Hoover v. Allen, 241 F.Supp. 213 (S.D.N.Y.1965), the plaintiffs sought to recover under § 14 on the basis of misleading proxy statements which caused stockholders other than plaintiffs to sell stock to defendants, thereby giving defendants control of the corporation and enabling them to commit waste. The court held that the fact that misleading statements were contained in proxy statements which induced stockholders to sell stock did not establish a cause of action for the damages claimed because there was no allegation that the violation of the proxy rules affected any corporate transaction which injured plaintiffs. “ * * * The only" }, { "docid": "10262044", "title": "", "text": "hence both lack standing to bring a 10b-5 action themselves. Since they are not themselves purchasers or sellers, they may not represent the purported class. “* * * [P]laintiff may not maintain this action on his individual behalf. And if he has no standing to sue on his own account, he may not maintain a class action on behalf of those stockholders who did sell their stock, because plaintiff is not a member of the class. Bailey v. Patterson, 369 U.S. 31 [82 S.Ct. 549, 7 L.Ed.2d 512] (1962); * * * ” [Other citations omitted.] Greenstein v. Paul, 275 F.Supp. 604, 605 (S.D.N.Y.1967), aff’d 400 F.2d 580 (C.A. 2, 1968). The motions to dismiss Count V will be granted and plaintiffs’ motion for class action determination denied. VI. Motions to Dismiss Count VII and Plaintiffs’ Motion for Class Action Determination Count VII is a direct class action brought on behalf of all holders of GSC common stock other than defendants who have suffered losses since 1965. This Count alleges that Pennco, GSC, the past GSC directors and Peat, Mar-wick all participated in the preparation and distribution of proxy materials which contained numerous misstatements and omissions of material facts in violation of § 14(a) of the Securities Exchange Act and Rule 14a-9. The gravamen of this claim is that statements mailed to the shareholders in 1969 and 1970 failed to disclose details of the transactions and acts alleged in Counts I-V, supra; alleged conflicts of interest on the part of several GSC directors which “impaired their judgment,” (|[ 57[g]); internal dissention among top management; and the alleged financial deterioration of GSC, which was concealed by the use of allegedly misleading financial statements. The purpose of § 14(a) is to protect the integrity of the corporate voting process. “The purpose of § 14(a) is to prevent management or others from obtaining authorization for corporate action by means of deceptive or inadequate disclosure in proxy solicitations. The section stemmed from the congressional belief that ‘[f]air corporate suffrage is an important right that should attach to every equity security bought on a public" }, { "docid": "23070543", "title": "", "text": "Act. The consent or authorization may take the form of a failure to object or to dissent. As used in the SEC’s rules, proxy is a generic term which includes the broader statutory terms “consent” and “authorization”. See L. Loss, Securities Regulation at page 871 (2d ed. 1961). To fit within the language of 14(a) and the SEC rules, plaintiffs argue that the September 18 letter was a “communication” to Leeds’ security holders “under circumstances reasonably calculated to result in the procurement” of a “failure to object or to dissent” to the refinancing plan from the plaintiff common shareholders. It is readily apparent from the complaint that this case is different from the usual proxy solicitation case, because no shareholder vote on the plan was ever sought, and there was no attempt to obtain any proxy in the narrow or common usage sense of that term. Indeed, since debenture conversion under the plan was to be into previously authorized but unissued stock, we can find no Florida statute which under normal circumstances would require shareholder approval or which would accord appraisal rights to the common shareholders. Likewise, since no stock was issued for cash, the common shareholders had no preemptive rights. From this premise defendants argue that “in the absence of some allegation of infringement upon corporate suffrage rights or some corporate action taken as a result of such infringement, no cause of action under section 14(a) has been made out.” Hoover v. Allen, 241 F.Supp. 213, 230 (S.D.N.Y.1965); see also Entel v. Allen, 270 F.Supp. 60 (S.D.N.Y.1967). This is too narrow a reading of the statute and the rules. Under Conley v. Gibson, supra, standards, we cannot say as a matter of law that the allegations of plaintiffs’ complaint taken as true fail to state a claim for relief. Whether or not a particular communication is a solicitation within the meaning of 14(a) is a question of fact dependent upon the nature of the communication and the circumstances under which it is transmitted. Securities Exchange Act, Release No. 7208, 29 Fed.Reg. 341 (1964). Although the September 18 letter by" }, { "docid": "23669903", "title": "", "text": "1079 (S.D.N.Y.1970) (dictum) and In re Penn Central Securities Litigation, 347 F.Supp. 1327 (E.D.Pa.1972) for the contrary proposition. I am persuaded that Chief Judge Lord correctly resolved this question in the Penn Central case. By including an express and expressly limited private remedy in Section 18, I think Congress clearly negated the existence of a further implied remedy for violation of Section 13. I agree that “where Congress has specifically authorized a remedy for violation of an act, the courts should not nullify the congressional scheme by implying a right of action on behalf of those not otherwise entitled to recover.” In re Penn Central Securities Litigation, 347 F.Supp. 1327, 1340 (E.D.Pa.1972) modified CCH Sec.L.Rep. ¶ 93,980 (E.D.Pa.1973). Count III will be dismissed unless plaintiff, within thirty days from the date of this Opinion, amends his complaint, if he so desires and can do so, to allege a cause of action for violation of Section 18 of the Exchange Act. Section 14(a) Of The Exchange Act Count IV of the complaint is founded upon Section 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder. Section 14 and Rule 14a-9 make it “unlawful for any person ... to solicit or permit the use of his name to solicit any proxy [which is materially misleading].” The gist of Count IV, which incorporates relevant paragraphs of earlier counts, is that defendants “disseminat ed” or aided in the dissemination of proxy statements containing untrue statements of material facts. Defendants contend that this pleading fails to state a claim because there is no allegation of causation between the violation and any injury to plaintiff. Hoover v. Allen, 241 F.Supp. 213 (S.D.N.Y.1965). Plaintiff responds that because he seeks only injunctive relief as to this count he need not allege any injury specially caused by the violation. I agree. Read as a whole, the complaint alleges that plaintiff has been provided by defendants with a series of materially misleading proxy statements which have affected the fair and informed exercise of his corporate franchise and that similar solicitations will occur in the future unless defendants are enjoined." }, { "docid": "23669904", "title": "", "text": "14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder. Section 14 and Rule 14a-9 make it “unlawful for any person ... to solicit or permit the use of his name to solicit any proxy [which is materially misleading].” The gist of Count IV, which incorporates relevant paragraphs of earlier counts, is that defendants “disseminat ed” or aided in the dissemination of proxy statements containing untrue statements of material facts. Defendants contend that this pleading fails to state a claim because there is no allegation of causation between the violation and any injury to plaintiff. Hoover v. Allen, 241 F.Supp. 213 (S.D.N.Y.1965). Plaintiff responds that because he seeks only injunctive relief as to this count he need not allege any injury specially caused by the violation. I agree. Read as a whole, the complaint alleges that plaintiff has been provided by defendants with a series of materially misleading proxy statements which have affected the fair and informed exercise of his corporate franchise and that similar solicitations will occur in the future unless defendants are enjoined. While I do not read the complaint to allege that plaintiff has suffered any economic injury or that any particular corporate action was taken as a result of the defective proxy solicitations, in my view a plaintiff states a claim for injunctive relief when he alleges that the exercise of his franchise has been impaired by a series of solicitations of proxies which violated Section 14(a) and that further violations are threatened for the future. The theory of corporate democracy which underlies the private right to enforce Section 14(a), J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), is incompatible with the notion that a shareholder has an enforceable federal right to honest proxy materials only when transactions approved by a shareholder vote in which he was misled has resulted in economic injury to him. I do not question the validity of those cases which hold that a causal relationship between a violation of Section 14 (a) and a corporate transaction causing harm to a shareholder needs to" }, { "docid": "10262047", "title": "", "text": "that transaction, if it is to give rise to a § 14(a) claim, must have been approved on the basis of misleading proxy material. In re Penn Central Securities Litigation, 347 F.Supp. 1327, 1341-1342 (E.D.Pa.1972); Hoover v. Allen, 241 F.Supp. 213 (S.D.N.Y.1965). See also Robbins v. Banner Industries, Inc., 285 F.Supp. 758, 762 (S.D.N.Y.1966). Count VII fails to satisfy these criteria and therefore must be dismissed. Nowhere in Count VII is there any allegation of any injury to plaintiffs’ corporate suffrage rights or to those of the shareholder class they seek to represent. Even an extremely liberal reading of Count VII fails to disclose such an allegation. In their response to the motions to dismiss, plaintiffs suggest (if we understand their argument) that the GSCMacco merger should have been submitted to the shareholders for their approval and since it was not, the shareholders were denied their rights of appraisal, a denial which somehow makes proxy material touching on the merger false and misleading. Even assuming, as we do not, that this argument rests on a sound foundation, it would still be impossible for plaintiffs to prove a set of facts to support a § 14(a) claim. The proxy materials at issue here were mailed to the shareholders, according to the complaint, “on or about April 11, 1969 and April 22, 1970.” (¶[56). The 1969 proxy solicitation was therefore made approximately two months after the consummation of the GSC-BDG-Macco transaction and the 1970 solicitation over a year after the alleged merger. See supra, § III. It is therefore totally impossible for the merger to have been approved as a result of the misleading proxy statements. Therefore, even if plaintiffs were able to prove every allegation in Count VII, they would still not have established any causal connection between the alleged misstatements and an infringement of their corporate suffrage rights. If that connection does not exist, it makes no difference for the purposes of § 14(a) that the misstatements happened to appear in a proxy statement. “The fact that the piece of paper upon which the allegedly misleading statements appeared was a" }, { "docid": "13044816", "title": "", "text": "under § 14. Section 14(a) deals with misleading proxy statements. Borak held that the private right of action under § 14(a) extended to a shareholder who had been solicited by the proxy. As the court later stressed in Mills, supra at 381, 90 S.Ct. at 620, § 14(a) was intended to protect corporate suffrage and thus “promote ‘the free exercise of the voting rights of stockholders’.” Thus, to have standing under § 14(a), the plaintiff is required to be a shareholder with voting rights in order to establish a nexus with the statute. As Chief Judge Lord observed: Section 14 protects investors in their status as shareholders by providing a cause of action for misleading proxy statements which affect the corporate voting process. In order to state a cause of action under § 14(a), a stockholder must establish that he was damaged by an infringement of corporate suffrage rights, (emphasis added). In Re Penn Central Securities Litigation, 347 F.Supp. 1327, 1342 (E.D.Pa.1972), aff’d 494 F.2d 528 (3d Cir. 1974). Recently a warrant holder was denied standing in a § 14(a) case. Werfel v. Kramarsky, 61 F.R.D. 674 (S.D.N.Y.1974). The court’s reasoning was that since a private right of action under § 14(a) exists only to protect corporate suffrage, a warrant holder, who has no voting rights, lacks standing since no voting rights exist and suffrage is not affected. The logic of Werfel is wholly applicable to the instant case in that an option holder and a warrant holder, while both “security holders” have no suffrage rights. In the context of § 14(a), an option holder has no standing to pursue a private cause of action. A private right of action exists in the case of a misleading tender offer under § 14(e). Chris-Craft Industries, Inc. v. Piper Aircraft, 480 F.2d 341 (2d Cir.), cert. denied, 414 U.S. 910, 94 S.Ct. 231, 38 L.Ed.2d 148 (1973); Electronic Specialty Co. v. International Controls Corp., 409 F.2d 937 (2d Cir. 1969). But the “security holders” protected by § 14(e) are “those security holders to whom the [tender] offer is addressed.” Sargent v. Genesco," }, { "docid": "10657381", "title": "", "text": "important by a reasonable shareholder who was in the process of deciding how to vote. This requirement that the defect have a significant propensity to affect the voting process is found in the express terms of Rule 14a-9, and it adequately serves the purpose of ensuring that a cause of action cannot be established by proof of a defect so trivial, or so unrelated to the transaction for which approval is sought, that correction of the defect or imposition of liability would not further the interests protected by § 14(a).” Mills v. Electric Auto-Lite Co., supra, 396 U.S. at 384, 90 S.Ct. at 621 (emphasis in original). Section 14 protects investors in their status as shareholders by providing a cause of action for misleading proxy statements which affect the corporate voting process. In order to state a cause of action under § 14(a), a stockholder must establish that he was damaged by an infringement of corporate suffrage rights. Therefore, a plaintiff can only establish a § 14(a) claim based on a purchase or sale of securities if the purchase or sale was the result of a corporate transaction whose approval was obtained by a misleading proxy statement, e. g., a traditional merger. See SEC v. National Securities, supra. If plaintiffs relied on a misleading proxy statement in deciding whether to purchase or sell stock independent of any corporate vote or transaction, plaintiffs’ remedies lie in §§ 10(b) or 18(a). Defendants base their supplemental motions for summary judgment as to the § 14(a) claims solely on the basis of the pleadings, and plaintiffs have not filed affidavits in opposition to the supplemental motions with respect to § 14(a) claims. Therefore, the motions are the equivalent of motions to dismiss pursuant to F.R.Civ.P. 12(b) (6). 6 J. Moore, Federal Practice j[ 56.02[3] at 2035 (2d ed. 1971) [hereinafter cited as Moore], The test on a motion to dismiss is whether the complaint is legally sufficient. “ * * * [A] complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any" }, { "docid": "13044815", "title": "", "text": "Exchange Act of 1934. Count No. 2 states a valid cause of action under Section 17(a) of the Securities Act of 1933. Count No, 3—Section 14(a) and (e) Violations. Count No. 3 alleges that false and misleading information was sent by defendants to shareholders in the proxy solicitations for the merger vote and in the tender offer to purchase Elco stock in violation of Sections 14(a) and (e) of the Securities Act of 1934, respectively. Whatever uncertainty there may be as to private causes of action under Section 17(a) of the Securities Act of 1933, it is clear that there is a private civil cause of action for “all necessary relief” under Section 14(a) of the Securities Exchange Act of 1934. J. I. Case Co. v. Borak, 377 U.S. 426, 435, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). Such relief may include monetary damages. Mills v. Electric Auto-Lite, 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1964). Left unanswered, however, is the class of persons to whom a private cause of action is extended under § 14. Section 14(a) deals with misleading proxy statements. Borak held that the private right of action under § 14(a) extended to a shareholder who had been solicited by the proxy. As the court later stressed in Mills, supra at 381, 90 S.Ct. at 620, § 14(a) was intended to protect corporate suffrage and thus “promote ‘the free exercise of the voting rights of stockholders’.” Thus, to have standing under § 14(a), the plaintiff is required to be a shareholder with voting rights in order to establish a nexus with the statute. As Chief Judge Lord observed: Section 14 protects investors in their status as shareholders by providing a cause of action for misleading proxy statements which affect the corporate voting process. In order to state a cause of action under § 14(a), a stockholder must establish that he was damaged by an infringement of corporate suffrage rights, (emphasis added). In Re Penn Central Securities Litigation, 347 F.Supp. 1327, 1342 (E.D.Pa.1972), aff’d 494 F.2d 528 (3d Cir. 1974). Recently a warrant holder was denied" }, { "docid": "846150", "title": "", "text": "and omissions. Consequently, and under either theory, plaintiff argues, the defendant knowingly issued or assisted in issuing false and misleading proxy solicitations which were used to secure the election of directors and the selection of auditors in violation of section 14(a) and the rules promulgated thereunder. II. Under either theory of liability, plaintiff’s reliance on section 14(a) is misplaced. Section 14 protects investors in their status as shareholders by providing a cause of action for misleading proxy statements which affect the corporate voting process. In order to state a cause of action under § 14(a), a stockholder must establish that he was damaged by an infringement of corporate suffrage rights. Therefore, a plaintiff can only establish a § 14(a) claim based on a purchase or sale of securities if the purchase or sale was the result of a corporate transaction whose approval was obtained by a misleading proxy statement, e. g., a traditional merger. * * * If plaintiffs relied on a misleading proxy statement in deciding whether to purchase or sell stock independent of any corporate vote or transaction, plaintiff’s remedies lie in §§ 10(b) or 18(a). In re Penn Central Securities Litigation, 347 F.Supp. 1327, 1342 (E.D.Pa.1972), aff’d, 494 F.2d 528 (C.A.3 1974). Liability under section 14(a) and Rule 14a-9, 17 CFR § 240.14a-9, has thus been limited to situations involving either corporate mergers and acquisitions, e. g., TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976); Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374 (C.A.2 1974), cert. denied, 421 U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); and In re Penn Central Securities Litigation, supra, or the qualifications of directors to serve as such, e. g., SEC v. Kalvex, Inc., [Current] Fed.Sec.L.Rep. (CCH) ¶ 95,226 (S.D.N.Y.1975) (director involved in kickback scheme); Mayer v. Development Corporation of America, 396 F.Supp. 917 (D.Del.1975) (directors would dishonor voting agreement); Cooke v. Teleprompter Corp., 334 F.Supp. 467 (S.D.N.Y.1971) (director convicted of bribery); Robinson v. Penn Central Co., 336 F.Supp. 655 (E.D.Pa.1971) (lawsuits pending against directors); and Rafael v. Geneen [1972-73] Fed.Sec.L.Rep. (CCH) ¶" }, { "docid": "10657383", "title": "", "text": "state of facts which could be proved in support of the claim. Pleadings are to be liberally construed.” 2A Moore ¶[ 12.08 at 2271-2274 (emphasis in original). Defendants maintain that the complaints fail to allege injuries which are actionable under § 14(a). We have reviewed the five complaints at issue and find that C.A. 70-2010, 70-2818, 70-2933 and 70-2596 (with respect to Count I for both plaintiffs and Count II with respect to plaintiff Nemser only) do state claims under § 14(a). We therefore deny defendants’ motions for summary judgment as to § 14(a) claims in these complaints. Count I of C.A. 71-277 alleges that deceptive proxy statements injured plaintiffs by artificially inflating the market price of Penn Central stock, thereby inducing plaintiffs to purchase or hold stock. We find that this complaint does not state a claim under § 14(a) because plaintiffs do not allege any injury to their corporate suffrage rights or any injury resulting from a corporate transaction approved on the basis of misleading proxy material. We, therefore, grant defendants’ motion for summary judgment as to § 14(a) claims asserted in Count I of C.A. 71-277 without prejudice to plaintiffs’ right to amend their complaint. We also find that plaintiff Baron has failed to state a claim under § 14(a) in Count II of C.A. 70-2596 because the alleged deceptive proxy material was issued and the corporate vote complained of occurred before Baron purchased Penn Central stock. We therefore grant defendants’ motion for summary judgment with respect to the § 14(a) claims asserted by plaintiff Baron in Count II of C.A. 70-2596. IV. Purchaser-Seller Requirement of § 9(a) of the Exchange Act and §§ 11(a) and 17(a) of the Securities Act Defendants have moved for summary-judgment as to all claims based upon alleged violations of § 9(a) of the Exchange Act and §§ 11(a) and 17 (a) of the Securities Act in the following complaints: C.A. 70-2010 (§§ 9(a), 11(a) and 17(a)), C.A. 70-2320 (§ 11 (a)), and C.A. 70-2696 (§§ 9(a) and 17 (a)). Defendants maintain that each section provides a civil remedy only to purchasers" }, { "docid": "846149", "title": "", "text": "section 14(a). Defendant BTMI also seeks dismissal of the non-federal claims asserted against it on the ground that BTMI lacks capacity to be sued in its common name. For the reasons discussed below, the section 14(a) claim is dismissed, and BTMI’s motion is denied. I. Plaintiff alleges that the annual reports and financial statements of BTMI contained false or misleading statements or material omissions of fact with respect to BTMI’s income from mortgage loan investments, the financial security of the investments, the criteria for selecting suitable loan candidates, and the managerial services supplied by BT Advisors. For purposes of this motion to dismiss the court assumes those allegations to be true. To establish liability under section 14(a), plaintiff advances two separate theories: (1) Since the annual reports and financial statements were “incorporated by reference” into the proxy solicitation materials, their false statements and omissions must be attributed to the proxy solicitation materials; and (2) Since the proxy solicitations failed to disclose the alleged inaccuracies of the annual reports and financial statements, they contained material misrepresentations and omissions. Consequently, and under either theory, plaintiff argues, the defendant knowingly issued or assisted in issuing false and misleading proxy solicitations which were used to secure the election of directors and the selection of auditors in violation of section 14(a) and the rules promulgated thereunder. II. Under either theory of liability, plaintiff’s reliance on section 14(a) is misplaced. Section 14 protects investors in their status as shareholders by providing a cause of action for misleading proxy statements which affect the corporate voting process. In order to state a cause of action under § 14(a), a stockholder must establish that he was damaged by an infringement of corporate suffrage rights. Therefore, a plaintiff can only establish a § 14(a) claim based on a purchase or sale of securities if the purchase or sale was the result of a corporate transaction whose approval was obtained by a misleading proxy statement, e. g., a traditional merger. * * * If plaintiffs relied on a misleading proxy statement in deciding whether to purchase or sell stock independent of" }, { "docid": "10657379", "title": "", "text": "real nature of the questions for which authority to cast his vote is sought.’ S.Rep. No. 792, 73d Cong, 2d Sess., 12.” J. I. Case Co. v. Borak, supra, 377 U.S. at 431, 84 S.Ct. at 1559. See also Mills v. Electric Auto-Lite Co., supra. Plaintiffs argue that § 14(a) affords a cause of action to a person who purchased, sold or retained stock in reliance upon false or misleading proxy statements. In Hoover v. Allen, 241 F.Supp. 213 (S.D.N.Y.1965), the plaintiffs sought to recover under § 14 on the basis of misleading proxy statements which caused stockholders other than plaintiffs to sell stock to defendants, thereby giving defendants control of the corporation and enabling them to commit waste. The court held that the fact that misleading statements were contained in proxy statements which induced stockholders to sell stock did not establish a cause of action for the damages claimed because there was no allegation that the violation of the proxy rules affected any corporate transaction which injured plaintiffs. “ * * * The only claimed injury is said to have resulted from the circumstance that statements in the proxies caused stockholders other than plaintiffs to sell stock. The fact that the piece of paper upon which the allegedly misleading statements appeared was a proxy statement is irrelevant to the damage claimed. * * * # * * “In the absence of some allegation of infringement upon corporate suffrage rights or some corporate action taken as a result of such infringement, no cause of action under section 14(a) has been made out.” Hoover v. Allen, supra, 241 F.Supp. at 230. See also Robbins v. Banner Industries, Inc., 285 F.Supp. 758, 762 (S.D.N.Y.1966). In Mills, the Supreme Court faced the question of what causal relationship must be shown between a materially misleading proxy statement and the asserted wrong. The Court concluded that “[w]here the misstatement or omission in a proxy statement has been shown to be ‘material,’ * * * that determination itself indubitably embodies a conclusion that the defect was of such a character that it might have been considered" }, { "docid": "10657382", "title": "", "text": "securities if the purchase or sale was the result of a corporate transaction whose approval was obtained by a misleading proxy statement, e. g., a traditional merger. See SEC v. National Securities, supra. If plaintiffs relied on a misleading proxy statement in deciding whether to purchase or sell stock independent of any corporate vote or transaction, plaintiffs’ remedies lie in §§ 10(b) or 18(a). Defendants base their supplemental motions for summary judgment as to the § 14(a) claims solely on the basis of the pleadings, and plaintiffs have not filed affidavits in opposition to the supplemental motions with respect to § 14(a) claims. Therefore, the motions are the equivalent of motions to dismiss pursuant to F.R.Civ.P. 12(b) (6). 6 J. Moore, Federal Practice j[ 56.02[3] at 2035 (2d ed. 1971) [hereinafter cited as Moore], The test on a motion to dismiss is whether the complaint is legally sufficient. “ * * * [A] complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Pleadings are to be liberally construed.” 2A Moore ¶[ 12.08 at 2271-2274 (emphasis in original). Defendants maintain that the complaints fail to allege injuries which are actionable under § 14(a). We have reviewed the five complaints at issue and find that C.A. 70-2010, 70-2818, 70-2933 and 70-2596 (with respect to Count I for both plaintiffs and Count II with respect to plaintiff Nemser only) do state claims under § 14(a). We therefore deny defendants’ motions for summary judgment as to § 14(a) claims in these complaints. Count I of C.A. 71-277 alleges that deceptive proxy statements injured plaintiffs by artificially inflating the market price of Penn Central stock, thereby inducing plaintiffs to purchase or hold stock. We find that this complaint does not state a claim under § 14(a) because plaintiffs do not allege any injury to their corporate suffrage rights or any injury resulting from a corporate transaction approved on the basis of misleading proxy material. We, therefore, grant defendants’ motion for" }, { "docid": "10262045", "title": "", "text": "GSC directors and Peat, Mar-wick all participated in the preparation and distribution of proxy materials which contained numerous misstatements and omissions of material facts in violation of § 14(a) of the Securities Exchange Act and Rule 14a-9. The gravamen of this claim is that statements mailed to the shareholders in 1969 and 1970 failed to disclose details of the transactions and acts alleged in Counts I-V, supra; alleged conflicts of interest on the part of several GSC directors which “impaired their judgment,” (|[ 57[g]); internal dissention among top management; and the alleged financial deterioration of GSC, which was concealed by the use of allegedly misleading financial statements. The purpose of § 14(a) is to protect the integrity of the corporate voting process. “The purpose of § 14(a) is to prevent management or others from obtaining authorization for corporate action by means of deceptive or inadequate disclosure in proxy solicitations. The section stemmed from the congressional belief that ‘[f]air corporate suffrage is an important right that should attach to every equity security bought on a public exchange.’ H.R. Rep.No.1383, 73d Cong., 2d Sess. 13. It was intended to ‘control the conditions under which proxies may be solicited with a view to preventing the recurrence of abuses which . [had] frustrated the free exercise of the voting rights of stockholders.’ Id., at 14. ‘Too often proxies are solicited without explanation to the stockholders of the real nature of the question for which authority to cast his vote is sought.’ S.Rep.No.792, 73d Cong., 2d Sess., 12.” J. I. Case Co. v. Borak, 377 U.S. 426, 431, 84 S.Ct. 1555, 1559, 12 L.Ed.2d 423 (1964). [Emphasis added.] Unlike § 10(b), which is a general anti-fraud provision, § 14(a) is aimed only at misleading statements and omissions which distort the voting process and which might affect a shareholder’s decision on how he will cast his vote. Therefore, in order to make out a cause of action under § 14(a) a plaintiff must allege an injury resulting from the infringement of his corporate suffrage rights. If he alleges that he was injured by a corporate transaction," }, { "docid": "10262048", "title": "", "text": "sound foundation, it would still be impossible for plaintiffs to prove a set of facts to support a § 14(a) claim. The proxy materials at issue here were mailed to the shareholders, according to the complaint, “on or about April 11, 1969 and April 22, 1970.” (¶[56). The 1969 proxy solicitation was therefore made approximately two months after the consummation of the GSC-BDG-Macco transaction and the 1970 solicitation over a year after the alleged merger. See supra, § III. It is therefore totally impossible for the merger to have been approved as a result of the misleading proxy statements. Therefore, even if plaintiffs were able to prove every allegation in Count VII, they would still not have established any causal connection between the alleged misstatements and an infringement of their corporate suffrage rights. If that connection does not exist, it makes no difference for the purposes of § 14(a) that the misstatements happened to appear in a proxy statement. “The fact that the piece of paper upon which the allegedly misleading statements appeared was a proxy statement is irrelevant to the damage claimed.” Hoover v. Allen, supra, 241 F.Supp. at 230. The motions to dismiss Count VII will be granted. VII. Count VI Count VI incorporates the allegations of Counts I-V and asserts them, under the doctrine of pendent jurisdiction, derivatively on GSC’s behalf as common law claims for breach of fiduciary duty, mismanagement and waste and dissipation of GSC’s corporate assets. The defendants named in this Count are Pennco, Glore, Glore Forgan Staats, the past GSC directors, Gorman, Gengras, Rauch, First National City Bank, Chase Manhattan Bank, N.A. and Peat, Marwick. A. Pennco Pennco and others joining in its motion have moved pursuant to F.R.Civ. P. 12(b)(1) for dismissal for lack of jurisdiction over the subject matter or, in the alternative, to strike pursuant to F.R.Civ.P. 12(f) allegations they contend are rendered immaterial by the dismissal of other claims. However,, although they suggest that the dismissal of any federal claim would necessitate the striking of the corresponding claims in Count VI, moving defendants correctly point out that it is" } ]

[ { "docid": "9777457", "title": "", "text": "12 but later, in the addendum, raising the level to 24; and third, that the court considered only the addendum and not the full presentence report. We comment, as well, on the proper method for challenging the content to an addendum. a. Untimely delivery to defendant Blythe informs us that, under 18 U.S.C. § 3552(d), a presentence report must be given to the defendant and his counsel at least ten days prior to the date set for sentencing. He asserts that his receipt of the addendum to the presentenee report on the day of sentencing was a denial of his due process rights under that provision. He further contends that the sentencing judge erred by failing to ask the defendant whether he had discussed both the report and the addendum with his counsel. Mr. Blythe’s argument goes astray at the initial point, when he omits a crucial portion of the statutory text: The court shall assure that a report filed pursuant to this section is disclosed to the defendant, the counsel for the defendant, and the attorney for the Government at least ten days prior to the date set for sentencing, unless this minimum period is waived by the defendant. 18 U.S.C. § 3552(d) (emphasis added). The defendant may waive that period by failing to assert his rights at the appropriate time. United States v. Busche, 915 F.2d 1150, 1151 (7th Cir.1990). In this case neither Blythe nor his lawyer asked for additional time. Answering questions by the court, the defendant stated that he had looked at the presentence report and had no objection to it. Despite numerous opportunities before and during the sentencing hearing, he did not inform the court that he wanted to invoke his entitlement to the ten-day period. The burden of asserting that ten-day period is placed on the defendant rather than the judge; a defendant’s silence surrenders any rights he may have had under § 3552(d). By saying that the defendant may waive the 10 days in which to study the presentence report, § 3552(d) gave the defendant charge of the timing. Nothing in the" } ]

[ { "docid": "15429986", "title": "", "text": "a different result, finding that the differences between former § 4208(b) and § 3552(b) render Corey inapplicable. Specifically, the Eleventh Circuit noted that § 3552(b) provides for a two-tiered sentencing system whereby a provisional sentence is imposed when a defendant is committed to the Bureau of Prisons and a final sentence determined after the study is received. Under § 4208(b) the first sentence was simply modified after the study was completed. The court also emphasized that while the period of study under § 4208(b) could range from 3 to 6 months, § 3552(b) permits a period of 60 to 120 days. . One of the issues in the current case highlights the prejudice that could result to appellant if he were not permitted an appeal at this stage: his contention that the district court erred by ruling that the sentencing study be completed within the Bureau of Prisons rather than in the local community would be moot if appeal were delayed. . The sixth amendment guarantees a defendant the right to representation by retained counsel in a criminal case. United States v. Kelm, 827 F.2d 1319 (9th Cir.1987). A probation revocation hearing in which a sentence is determined has been held to be subject to the sixth amendment’s requirements. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) (deciding that a sixth amendment right to appointed counsel extends to such hearing). . In a supplemental submission, appellant cited United States v. Walker, 915 F.2d 480 (9th Cir.1990), in which this court reversed the trial court’s refusal to substitute counsel on the morning of the trial. Walker, however, does not support appellant. Walker had requested substitution of counsel by a letter dated a week prior to his hearing, and both Walker and his attorney testified to an irreconcilable breakdown in the attorney-client relationship about which the judge did not make adequate inquiry. . Fed.R.Crim.P. 32.1(a)(2)(B) requires that \"[the] person shall be given ... disclosure of the evidence against the person\". . Defense counsel cross-examined the probation officer as follows: Q. And he reported on a monthly basis" }, { "docid": "23206233", "title": "", "text": "and just one day before the sentencing hearing. This, according to Demski, violated 18 U.S.C. § 3552(d), which requires that a presentence report be “disclosed to the defendant, the counsel for the defendant, and the attorney for the Government at least ten days prior to the date set for sentencing, unless this minimum period is waived by the defendant.” 18 U.S.C. § 3552(d). It is true that Demski had a right to have the PSR disclosed to her at least ten days before the sentencing hearing, and that she did not waive this right by failing to object to the late-filing at the sentencing hearing. I See United States v. Blythe, 944 F.2d 356 (7th Cir.1991) (a defendant waives rights under 18 U.S.C. § 3552(d) if he makes no objection at the appropriate time). However, we do not believe that the probation office’s eleventh-hour fifing of the amended PSR significantly affected Ms. Demski’s right to a fair sentencing hearing. We do not believe that this procedural misstep warrants disturbing the sentence of the district court, which, as discussed elsewhere in this opinion, was well-founded and not clearly erroneous. We note that when Demski’s attorney raised the issue of the amended PSR at the hearing, the sentencing judge stated very directly “I’m not taking it into account so you don’t need to respond to it.” Counsel for Demski did not request an adjournment or express any dissatisfaction with the judge’s statement that she would not take the amended PSR into account. Moreover, the law is clear that a sentencing judge is not bound by the PSR’s recommendations concerning sentence. United States v. Heilprin, 910 F.2d 471, 475 (7th Cir.1990). We also observe that Demski’s counsel was either lucky, clairvoyant, or extremely quick on her feet, for she did present cogent arguments in favor of a reduction for acceptance of responsibility, despite the lack of time in which to prepare. Demski thus had “an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence,” as required by Fed.R.Crim.P. 32. C. Demski’s Denial of Relevant Conduct" }, { "docid": "22064536", "title": "", "text": "upward departure in the criminal history category from category II to category III. (JA at 41-43). See United States v. Montenegro-Rojo, 908 F.2d 425, 428-30 (9th Cir.1990) (departure warranted for blameworthy conduct). The judge also wanted to increase the offense level from level 12 to level 14, but refrained from doing so, respecting the plea bargaining agreement. Procedural safeguards also prevent the inadvertent use of unreliable information for sentencings. Federal Rule of Criminal Procedure 32(c)(3) requires the disclosure of any presentence investigation to the defendant at least 10 days before sentence is imposed. Section 3552 of Title 18, United States Code, requires the United States probation officer to make a presentence investigation of the defendant prior to sentencing and report the findings to the court. The court is obligated to disclose the report to defense counsel, defendant and government attorney at least 10 days prior to the date set for sentencing. 18 U.S.C. § 3553(d). The defendant cannot waive preparation of the presentence report. U.S.S.G. § 6A1.1. Additionally, the Guidelines urge the district courts to adopt procedures which will result in a resolution or narrowing of issues in dispute in the presentence report. U.S.S.G. § 6A1.2. District courts typically require objections to the presentence report to be filed in writing before the sentencing hearing. If this is overlooked for any reason, the defendant has a last opportunity to present oral objections to the report during the sentencing hearing itself. U.S.S.G. § 6A1.3. This section of the Guidelines further provides that “The court shall resolve disputed sentencing factors in accordance with Rule 32(a)(1), Fed.R.Crim.P. (effective Nov. 1, 1987), notify the parties of its tentative findings and provide a reasonable opportunity for the submission of oral or written objections before imposition of sentence.” U.S.S.G. § 6A1.3(b). See United States v. Anders, 899 F.2d 570, 576 (6th Cir.1990) (defendant is guaranteed opportunity to comment on probation officer’s findings). This does not mean the court must give the defendant notice of the actual sentence contemplated before hearing arguments from counsel on the disputed factors in the presentence report. Id. at 577. A mere objection" }, { "docid": "72584", "title": "", "text": "much more likely to respond to example than to admonition — the defendant must now become an example of another kind. . That rule states, in relevant part, that \"[a]t least 10 days before imposing the sentence, unless this minimum period is waived by the defendant, the court shall provide the defendant and the defendant’s counsel with a copy of the report of the presentence investigation_” Fed.R.Crim.P. 32(c)(3)(A). In addition, 18 U.S.C. § 3552(d) similarly states that \"[t]he court shall assure that a [presentence report] is disclosed to the defendant, the counsel for the defendant, and the attorney for the Government at least ten days prior to the date set for sentencing, unless this minimum period is waived by the defendant.” Because appellant's counsel repeatedly requested the court to delay sentencing until he had ten days to review the report, it is clear that appellant did not waive his right to the ten-day notice period. . Neither the parties nor the district court focused on the applicability of Rule 45 below. At the presentencing hearing on October 19, 1990, the government argued that it would not violate the ten-day rule to go ahead with the sentencing hearing on October 26, because appellant’s counsel received the presentence report on October 16. Appellant responded that it would violate the rule to go ahead with sentencing on October 26 because, in his view, he was entitled to have the report for ten full days prior to sentencing and the day of the delivery of the document does not count. . That section provides, in relevant part, that (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding: ... 28 U.S.C. § 144 also provides a procedure for bringing motions for recusal for judicial bias. That section states: Whenever a party to any proceeding in a district court" }, { "docid": "9777459", "title": "", "text": "text or structure of the law implies that the district court must initiate a colloquy along the lines of Fed. R.Crim.P. 11(c) to determine whether the accused understands this. Defendants therefore may surrender their right under § 3552(d) by participating in sentencing without objection. Id. We find that Blythe waived his right to a ten-day review period under § 3552(d) by failing to assert it at the appropriate time. As we said in Busche, a defendant’s election to participate in sentencing without objection, “whether advertent or not, is conclusive.” Id. The court was not asked to postpone the sentencing hearing, and it did not. Was Blythe significantly prejudiced because the hearing was conducted on the same day that the addendum was filed? Certainly not. Nothing in the addendum was new; it clearly and fairly presented both parties’ objections to the presentence report and offered the probation office’s response. Blythe had long known that 24 was the government’s recommended base level, and he had agreed to it in the plea agreement filed May 17,1990. Furthermore, the court had before it defense counsel’s written objections to the initial offense level, and heard his oral arguments on this issue at the hearing. After reviewing the transcript of the hearing, we find that the court fully accorded the defendant and his counsel “an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence,” as required by Fed.R.Crim.P. 32. Under the circumstances herein, no miscarriage of justice can possibly be found in the court’s holding of the sentencing hearing on the day that the addendum was filed. We hold that the court committed no plain error by proceeding with the sentencing. b. Content of addendum: base offense level We note that Blythe points out only one difference between the original presen- tence report and the addendum, namely the change in the sentencing recommendation from base level 12 to 24. Blythe asserts that the addendum falsely represented the government’s recommended base level as 24 rather than 12, and that the government misled him by originally suggesting 12 as the" }, { "docid": "23206232", "title": "", "text": "pleading guilty, admitting her role in the conspiracy, and cooperating fully with law enforcement officers. She notes that counsel for the Government, consistent with the plea agreement, stated at the sentencing hearing that there was a “reasonable basis” for an acceptance-of-responsibility reduction. Dem-ski also notes that the probation office recommended a reduction in its original presentence report, but then withdrew that recommendation in an amended report filed the day before the sentencing hearing. In addition to asserting that the last-minute filing of the amended PSR prejudiced her ability to prepare fully for the sentencing hearing, Demski makes a more fundamental claim: that the court, by denying an acceptance-of-responsibility reduction, “punished [her] for exercising her right to challenge the accuracy of the presentence report.” B. The Late Filing of the Amended PSR Initially, we address Demski’s claim that the filing of the amended PSR within ten days of her sentencing hearing prejudiced her ability to prepare adequately for the hearing. The amended report was filed four days after Demski made her objections to the original PSR, and just one day before the sentencing hearing. This, according to Demski, violated 18 U.S.C. § 3552(d), which requires that a presentence report be “disclosed to the defendant, the counsel for the defendant, and the attorney for the Government at least ten days prior to the date set for sentencing, unless this minimum period is waived by the defendant.” 18 U.S.C. § 3552(d). It is true that Demski had a right to have the PSR disclosed to her at least ten days before the sentencing hearing, and that she did not waive this right by failing to object to the late-filing at the sentencing hearing. I See United States v. Blythe, 944 F.2d 356 (7th Cir.1991) (a defendant waives rights under 18 U.S.C. § 3552(d) if he makes no objection at the appropriate time). However, we do not believe that the probation office’s eleventh-hour fifing of the amended PSR significantly affected Ms. Demski’s right to a fair sentencing hearing. We do not believe that this procedural misstep warrants disturbing the sentence of the district court," }, { "docid": "21590433", "title": "", "text": "considerable number of statutes and guideline provisions for proceeding against a defendant accused of criminal activity; and second, the mandatory sentencing laws and the guidelines have brought about such relative inflexibility with respect to sentencing that, once the charges are fixed, the judicial contribution is ... largely ministerial.” Id. at 1363, 1368 (“It is not necessary, however, to rest the resolution of the cases before the Court on so broad a ruling_”). Barajas contends that the Sentencing Guidelines constrict the sentencing court’s discretion and violate due process by permitting the prosecutor to seek an enhancement under U.S.S.G. § 3B1.1. We are unpersuaded by the district court’s reasoning in Roberts. We have recently held that the Sentencing Guidelines’ limitation of the sentencing court’s discretion does not violate a defendant’s procedural due process rights. United States v. Brady, 895 F.2d 538, 541-43 (9th Cir.1990). In Brady, we recognized that “Procedurally, the only difference between the sentencing process under the guidelines and the prior indetermin'te sentencing system is the reduction of the sentencing court’s discretion.... The guidelines define explicitly the means by which a court should determine a sentence, and require a sentencing court to justify any departure. See 18 U.S.C. § 3553(c). A defendant ‘has the right to appear, to offer evidence, and to challenge the Government’s evidence.’ ” Id. at 542 (quoting United States v. Thomas, 884 F.2d 540, 544 (10th Cir.1989)) (quoting United States v. Vizcaino, 870 F.2d 52, 56 (2d Cir.1989)). “In short, ‘the Sentencing Guidelines provide — if nothing else— satisfactory procedural safeguards to satisfy the demands of the due process clause.’ ” Id. (quoting United States v. Vizcaino, 870 F.2d at 56). These procedural safeguards are set forth in 18 U.S.C. §§ 3552 and 3553 and Fed.R.Crim.P. 32. We have summarized those procedures as follows: 18 U.S.C. § 3552(d) mandates that the defendant receive a copy of his or her presentence report a minimum of ten days in advance of sentencing. Prior to imposition of sentence, the court must permit the government and the defendant to submit materials addressing the accuracy of the presentence report. 18 U.S.C." }, { "docid": "7530405", "title": "", "text": "to all parties in advance of sentencing) should obtain. Accord United States v. Blythe, 944 F.2d 356, 360 (7th Cir.1991) (determining that section 3552(d)’s framework for review by all interested parties applies to an addendum to the presentence report). We hold, therefore, that if a sentencing court desires additional information from a court-appointed expert, it must either (1) make a written request for a supplemental report and provide that supplemental report to the parties in accordance with the procedure described in 18 U.S.C. § 3552(d), or (2) bring the expert into court to be questioned in the presence of the parties. Such an even-handed approach not only honors what we believe to be the intent of the drafters of section 3552, but also fits neatly with the prevailing view as to how courts should communicate with court-appointed experts on matters of substance. E.g., Bradley, 620 F.2d at 1158 (opining that “if any experts are employed to advise the district court ... they shall prepare written reports, copies of which shall become part of the record and shall be made available to all parties or their attorneys”); Green, 544 F.2d at 146 n. 16 (observing that the most appropriate way for a court to talk with its appointed expert would be through “an on-the-record conference in chambers or an on-the-record conference call so that counsel for all parties may participate”); Joe S. Cecil & Thomas E. Willging, Courh-Appointed Experts: Defining the Role of Experts Appointed Under Federal Rule of Evidence 706, at 91-92 (1993) (“If the judge and the expert expect to confer in person ... [representatives of the parties can be invited to attend the conference or ... a record of the discussion can be forwarded to the parties.”). The court below acted in a manner inconsistent with this prudential rule and therefore erred. On the record before us, we conclude that the error can not be deemed harmless. We base this determination on several factors. First, the ex parte conversation dealt with a substantive sentencing matter (whether Craven’s rehabilitation could be considered extraordinary given his prison disciplinary record). Second," }, { "docid": "7530403", "title": "", "text": "moreover, that the district court’s violation of this principle taints the factual basis for the departure decision and leaves us unable to determine whether Craven’s efforts to overcome his addiction qualify him for a downward departure. See Martin, 221 F.3d at 58 (ending analysis upon determining that sentencing court relied on forbidden information in departing). We explain our thinking below. In general, the law frowns upon ex parte communications between judges and court-appointed experts. See Bradley v. Milliken, 620 F.2d 1143, 1158 (6th Cir.1980) (expressing concern that reports of court-appointed experts were not placed in record or made available to parties); United States v. Green, 544 F.2d 138, 146 n. 16 (3d Cir.1976) (“Generally ... the court should avoid ex parte communications with anyone associated with the trial, even its own appointed expert.”); see generally 29 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6305 (1997 & Supp.2000) (“[E]x parte communications between the judge and the expert ... are discouraged.”). The reason is obvious: most ex parte contacts between a trial judge and another participant in the proceedings risk harm, and ex parte communications with key witnesses (such as court-appointed experts) are no exception. To the contrary, such ex parte contacts can create situations pregnant with problematic possibilities. Nor is there any convincing reason for exempting communications undertaken in the course of sentencing from this general prohibition. In point of fact, the statutory provision under which the district court recruited Dr. Weisman does not contemplate substantive ex parte communications between the appointer and the appointee. Rather, it requires that the expert file with the court “a written report of the pertinent results of the study,” 18 U.S.C. § 3552(b), and the court must ensure that the report is disclosed to the defendant, his counsel, and the prosecutor prior to the disposition hearing, id. § 3552(d). While the statute does not deal explicitly with the procedure to be followed if the court requires information over and above that contained in the original report, it follows logically that the same or equivalent safeguards (i.e., a written response delivered" }, { "docid": "7530378", "title": "", "text": "SELYA, Circuit Judge. In this sentencing appeal, the government, qua appellant, protests the district court’s reliance, in granting a downward departure for extraordinary presentence rehabilitation, on an ex parte conversation with a court-appointed psychologist. The defendant, Alfred Craven, resists the government’s appeal and simultaneously attempts to persuade us that the Supreme Court’s recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), demands further paring of his sentence. Because Craven has not cross-appealed, his Apprendi-based claim is not properly before us and we refrain from burrowing into its merits. This leaves the government’s appeal — an appeal which requires us to consider the district court’s authority vel non to engage in ex parte discussions of substantive matters with court-appointed experts. We conclude that the sentencing court erred in undertaking, and then basing its departure decision on, an ex parte communication. Hence, we vacate Craven’s sentence and remand for resentencing. I. BACKGROUND On June 23, 1999, Craven pleaded guilty to nine counts arising from his involvement in a massive marijuana distribution scheme. A series of sentencing hearings ensued. At the first session, held on December 13, 1999, the district court tentatively fixed the guideline sentencing range (GSR) at 235-293 months, based on an adjusted offense level of thirty-six (including, inter alia, a three-level downward adjustment for acceptance of responsibility under USSG § 3E1.1) and a criminal history category of III. Craven then lobbied for a downward departure, asserting that he had turned his life around about a year before his arrest (e.g., he had stopped drinking and using drugs, obtained gainful employment, reconciled with his girlfriend, and begun to act as a parent to his young son). In support, he tendered letters from family and friends corroborating this about-face. The judge advised the parties that she intended to have an expert “document” Craven’s rehabilitation. To this end, she entered an order directing Dr. Laurence Weisman, a psychologist, to conduct a substance abuse evaluation and submit a report. See 18 U.S.C. § 3552(b) (authorizing the sentencing court to order a study of the defendant if" }, { "docid": "3779879", "title": "", "text": "the Federal Rules of Criminal Procedure govern the preparation and use of presentence reports, in conjunction with U.S.S.G. §§ 6A1.1, p.s., and 6A1.2, p.s. The sentencing court may consider an extremely wide range of information pertaining to a convicted defendant, United States v. Beaulieu, 893 F.2d 1177, 1179 (10th Cir.1990); 18 U.S.C. § 3661 (formerly 18 U.S.C. § 3577), subject to certain constitutional constraints. See Roberts v. United States, 445 U.S. at 556, 100 S.Ct. at 1362; United States v. Tucker, 404 U.S. 443, 446-49, 92 S.Ct. 589, 591-93, 30 L.Ed.2d 592 (1972); United States v. Strayer, 846 F.2d 1262, 1267 (10th Cir.1988); United States v. Graves, 785 F.2d 870, 872-76 (10th Cir.1986). . See 18 U.S.C. §§ 3552, 3553; Fed.R.Crim.P. 32(c); see also Division of Probation, Administrative Office of the United States Courts, Pre-sentence investigation Reports Under the Sentencing Reform Act of 1984 64-69 (1987), reprinted in Federal Judicial Center, Guideline Sentencing Orientation tab H (1987). See generally United States v. Belgard, 694 F.Supp. at 1502-16 (several documents explaining the pre-sentence report appended to the court's opinion). . 18 U.S.C. § 3552(b) permits a court-ordered study of a defendant which may or may not require an interview. 18 U.S.C. § 3552(c) specifically authorizes a court-ordered psychiatric or psychological examination of the defendant. . The application notes relating to § 3E1.1 provide: \"1. In determining whether a defendant qualifies for this provision, appropriate considerations include, but are not limited to, the following: (a) voluntary termination or withdrawal from criminal conduct or associations; (b) voluntary payment of restitution prior to adjudication of guilt; (c) voluntary and truthful admission to authorities of involvement in the offense and related conduct; (d) voluntary surrender to authorities promptly after commission of the offense; (e) voluntary assistance to authorities in the recovery of the fruits and instrumentalities of the offense; (f) voluntary resignation from the office or position held during the commission of the offense; and (g) the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility. 2. Conviction by trial does not preclude a defendant from consideration under this section. A defendant may" }, { "docid": "21464669", "title": "", "text": "hearing and at the sentencing hearing clearly fall under the protection of § 1001(b), because Defendant made the statements directly to a judge in a judicial proceeding. The question in this case is whether Defendant’s identical false statement, made to the probation officer during the presentence interview, likewise is protected by the exception that Congress created in § 1001(b). Because the probation officer was required by law to submit this particular false statement to the judge, we conclude that it is protected by § 1001(b). “A United States probation officer shall make a presentence investigation of a defendant that is required pursuant to the provisions of Rule 32(c) of the Federal Rules of Criminal Procedure, and shall, before the imposition of sentence, report the results of the investigation to the court.” 18 U.S.C. § 3552(a). Rule 32(d)(2) of the Federal Rules of Criminal Procedure further specifies that “[t]he pre-sentence report must ... contain ... the defendant’s history and characteristics.” A probation officer therefore is required to report all material aspects of a defendant’s “history and characteristics” to the court in the PSR. As the government concedes, Defendant’s alleged prior military service was material biographical information to be considered by the judge at sentencing. Indeed, § 1001(a) criminalizes only material lies, and the indictment accordingly charged Defendant with having “knowingly and willingly made a materially false statement.” (Emphasis added.) The materiality of Defendant’s false statement is further demonstrated by the district judge’s explicit rebanee on Defendant’s alleged military service in sentencing Defendant to a lenient sentence of probation. In summary, when Defendant told the probation officer that he had served in the Marine Corps, the probation officer was required by law to include the substance of that statement in the PSR. Dutifully performing his job, the probation officer did so: “The defendant informed this officer that he was enlisted in the U.S. Marine Corps from May 1986 to May 1991 and received an honorable discharge.” And as required by law, the probation officer submitted the presentenee report to the judge. See 18 U.S.C. § 3552(a) (requiring that “[a] United States probation" }, { "docid": "21464668", "title": "", "text": "Instead, he argues that his conduct falls under the exception in § 1001(b), which provides: Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding. Section 1001(b) contains three requirements: Defendant “must show that (1) he was a party to a judicial proceeding, (2) his statements were submitted to a judge or magistrate, and (3) his statements were made ‘in that proceeding.’ ” McNeil, 362 F.3d at 572 (quoting 18 U.S.C. § 1001(b)). The parties—and we—agree that the first and third requirements are met: Defendant was a party to a judicial proceeding and made his statement in that proceeding. The only issue in dispute is the second requirement: whether Defendant’s false statement to the probation officer, which was submitted to the judge in the PSR, qualifies as having been “submitted by [a] party ... to a judge.” 18 U.S.C. § 1001(b). Defendant’s false statements at the change of plea hearing and at the sentencing hearing clearly fall under the protection of § 1001(b), because Defendant made the statements directly to a judge in a judicial proceeding. The question in this case is whether Defendant’s identical false statement, made to the probation officer during the presentence interview, likewise is protected by the exception that Congress created in § 1001(b). Because the probation officer was required by law to submit this particular false statement to the judge, we conclude that it is protected by § 1001(b). “A United States probation officer shall make a presentence investigation of a defendant that is required pursuant to the provisions of Rule 32(c) of the Federal Rules of Criminal Procedure, and shall, before the imposition of sentence, report the results of the investigation to the court.” 18 U.S.C. § 3552(a). Rule 32(d)(2) of the Federal Rules of Criminal Procedure further specifies that “[t]he pre-sentence report must ... contain ... the defendant’s history and characteristics.” A probation officer therefore is required to report all material aspects of a defendant’s “history and" }, { "docid": "22267138", "title": "", "text": "IV). On January 20, 1989, Smith was sentenced under the sentencing guidelines to a an 18-year term of imprisonment followed by a five-year term of supervised release. Smith raises four issues on appeal. 1. Motion for Withdrawal of Guilty Plea Smith contends that the district court erred at sentencing by denying his motion to withdraw his guilty plea. We review the district court’s denial for an abuse of discretion. See United States v. Johnson, 760 F.2d 1025, 1026 (9th Cir.1985). Under Fed.R.Crim.P. 32(d), the “defendant bears the burden of demonstrating a fair and just reason for withdrawal” of his guilty plea. United States v. Rios-Ortiz, 830 F.2d 1067, 1069 (9th Cir.1987). Like the defendant in Rios-Ortiz, Smith “[did] not challenge the adequacy of his Rule 11 hearing nor [did] he allege newly discovered evidence, intervening circumstances or any other reason for withdrawing his guilty plea that did not exist when he pleaded guilty.” Id. When making his request to withdraw his guilty plea, Smith merely stated, “I feel that I am being blamed for a lot of stuff I didn’t do.” The district court did not abuse its discretion by ruling that this unsupported protest was not a fair and just reason for withdrawal. See id. (change of heart does not warrant withdrawal). 2. Late Delivery of Presentenee Investigation Report Smith contends that the district court erred by denying his motion for reconsideration and resentencing because he was prejudiced by late receipt of his presen-tence investigation report. This contention lacks merit. Under 18 U.S.C. § 3552, the presentenee investigation report must be disclosed to the defendant, his counsel, and the government attorney at least ten days before sentencing unless the defendant waives the minimum period. United States v. Schlette, 842 F.2d 1574, 1578, amended, 854 F.2d 359 (9th Cir.1988). Section 3552 provides no indication of what constitutes waiver. A General Order of the district court directed that, in cases involving application of the sentencing guidelines, the probation officer provide a copy of the presentence report to defense counsel twenty-eight days before the date of sentencing. In support of Smith’s motion" }, { "docid": "5290603", "title": "", "text": "period might not have been violated in this case. Willis received the revised PSR on July 7, 2009; the responses received on October 21, 2009 did not alter any portion of that PSR. Therefore, one might argue — though the Government does not — that the ten-day window had been satisfied. See United States v. Jackson, 186 F.3d 836, 838-39 (7th Cir.1999) (finding no § 3552(d) violation during the defendant's 1997 resentencing because the defendant had reviewed a 1995 PSR — which was identical to the 1997 PSR — during his original sentencing in 1995). Furthermore, the Rules of Criminal Procedure suggest that the ten-day period applies only to the initial PSR released by the Proba tion Office (the July 2009 document) and not to the Probation Office’s responses (the October 21 document). Rule 32(e)(2) provides that ”[t]he probation officer must give the presentence report to the defendant [and] the defendant's attorney ... at least 35 days before sentencing unless the defendant waives this minimum period.” Fed. R. Crim. P. 32(e)(2). This provision applies most readily to the revised PSR distributed in July 2009. Rule 32(g), however, only mandates a seven-day period between the sentencing hearing and receipt of the Probation Office’s responses to the defendant's objections: \"At least 7 days before sentencing, the probation officer must submit to the court and to the parties the presentence report and an addendum containing any unresolved objections, the grounds for those objections, and the probation officer’s comments on them.” Id. 32(g). This provision applies most readily to the document released on October 21. The district court’s failure to grant a continuance certainly violated this rule, but would be harmless for the reasons described in the text. So, unless Rule 32(g) and § 3552(d) are in direct conflict — because Rule 32(g) provides the defendant with less than ten days’ notice of the addendum — the addendum, which was provided on October 21, is not covered by § 3552(d). The parties have not briefed this issue, and the Government does not challenge Willis’s premise that § 3552(d) applies to the addendum distributed on" }, { "docid": "8140688", "title": "", "text": "judge. See, e.g., Fed.R.Crim.P. 49(d) (requiring papers to be filed in the manner provided for in a civil action); Fed.R.Civ.P. 5(d)(2) (“A paper is filed by delivering it ... to the clerk.”); accord United States v. Horvath, 492 F.3d 1075, 1082 (9th Cir.2007) (Rymer, J., dissenting) (“[T]he judge would receive these things personally if only he or she had enough time and arms.”). But a probation officer is no mere judicial delivery service. By rule, probation officers are assigned responsibility for calculating a recommended Guidelines range, see Fed.R.Crim.P. 32(d)(1)(C), compiling information sufficient to determine an appropriate restitution amount, see Fed. R.Crim.P. 32(c)(1)(B) & (d)(2)(D), and making other sentencing recommendations to the judge, see, e.g., Fed.R.Crim.P. 32(d)(1)(E) & (d)(2)(C)-(F). By statute, Congress has recognized all this: “A United States probation officer shall make a presentence investigation of a defendant that is required pursuant to the provisions of Rule 32(c) of the Federal Rules of Criminal Procedure, and shall, before the imposition of sentence, report the results of the investigation to the court.” 18 U.S.C. § 3552(a). As the Administrative Office has summarized, the probation officer “is responsible for gathering all pertinent facts about the defendant and the offense, verifying the information gathered, interpreting and evaluating the data, applying the facts to the advisory guidelines and statutes, and presenting the information in an organized, objective report.” Administrative Office of the United States Courts, Office of Probation and Pretrial Services, The Presentence Investigation Report at II — 1 (rev. March 2006) (emphases added). So, when a defendant presents information to the probation officer, he or she does not merely (only) send it to the judge or commit it to a judge’s consideration. Rather, the defendant also presents the statement for the probation officer’s use, consideration, and study. In this way, something more than a mere “submission to a judge” takes place. Indeed, in light of the probation officer’s role as fact-gatherer, information-verifier, data-interpreter, guidelines-applier, and sentence-recommender, Mr. Manning’s false statement was, in a very real way, “submitted” to the probation officer (even if,. perhaps, also to the judge) for his consideration and study." }, { "docid": "7530404", "title": "", "text": "judge and another participant in the proceedings risk harm, and ex parte communications with key witnesses (such as court-appointed experts) are no exception. To the contrary, such ex parte contacts can create situations pregnant with problematic possibilities. Nor is there any convincing reason for exempting communications undertaken in the course of sentencing from this general prohibition. In point of fact, the statutory provision under which the district court recruited Dr. Weisman does not contemplate substantive ex parte communications between the appointer and the appointee. Rather, it requires that the expert file with the court “a written report of the pertinent results of the study,” 18 U.S.C. § 3552(b), and the court must ensure that the report is disclosed to the defendant, his counsel, and the prosecutor prior to the disposition hearing, id. § 3552(d). While the statute does not deal explicitly with the procedure to be followed if the court requires information over and above that contained in the original report, it follows logically that the same or equivalent safeguards (i.e., a written response delivered to all parties in advance of sentencing) should obtain. Accord United States v. Blythe, 944 F.2d 356, 360 (7th Cir.1991) (determining that section 3552(d)’s framework for review by all interested parties applies to an addendum to the presentence report). We hold, therefore, that if a sentencing court desires additional information from a court-appointed expert, it must either (1) make a written request for a supplemental report and provide that supplemental report to the parties in accordance with the procedure described in 18 U.S.C. § 3552(d), or (2) bring the expert into court to be questioned in the presence of the parties. Such an even-handed approach not only honors what we believe to be the intent of the drafters of section 3552, but also fits neatly with the prevailing view as to how courts should communicate with court-appointed experts on matters of substance. E.g., Bradley, 620 F.2d at 1158 (opining that “if any experts are employed to advise the district court ... they shall prepare written reports, copies of which shall become part of the record" }, { "docid": "22418628", "title": "", "text": "the sentencing procedure denied appellants due process because we find that the failure to notify appellants of the basis for departure in advance of the imposition of sentence violated Fed.R.Crim.P. 32(a)(1). Cf. Ramirez De Rosas, at 1179 (no denial of due process where court explained reasons for sentence and considered factors set forth in 18 U.S. C. § 3553(a)(2)). 18 U.S.C. § 3552(d) mandates that the defendant receive a copy of his or her presentence report a minimum of ten days in advance of sentencing. Prior to imposition of sentence, the court must permit the government and the defendant to submit materials addressing the accuracy of the presentence report. 18 U.S.C. § 3553(d). Fed.R.Crim.P. 32(a)(1) also requires that the court provide the defendant with notice of the probation officer’s determination of “the sentencing classifications and sentencing guideline range believed to be applicable.” Rule 32(a)(1) guarantees that the defendant have the opportunity to comment upon these conclusions, as well as any facts contained in the presentence reports. Fed.R.Crim.P. 32(a)(1) and section 3553(d) indicate that the presentence report or the court must inform the defendant of factors that they consider to constitute grounds for departure. See Otero, at 1415. This requirement is not satisfied by the fact that the relevant information is present within the presentence report. See id. Rather, such information either must be identified as a basis for departure in the presentence report, or, the court must advise the defendant that it is considering departure based on a particular factor and allow defense counsel an opportunity to comment. See id. Here, appellants did not receive notice. Although Garcia’s presentence report suggested departure based on his possession of a weapon, it did not identify the possession of marijuana or his criminal history as a ground for departure. And although both reports clearly set forth the size and sophistication of the smuggling operation, neither mentioned this as a possible basis for departure from the guidelines. Moreover, the court did not indicate in any way its intent to depart from the guidelines prior to doing so, and thus failed to permit any meaningful" }, { "docid": "21590434", "title": "", "text": "explicitly the means by which a court should determine a sentence, and require a sentencing court to justify any departure. See 18 U.S.C. § 3553(c). A defendant ‘has the right to appear, to offer evidence, and to challenge the Government’s evidence.’ ” Id. at 542 (quoting United States v. Thomas, 884 F.2d 540, 544 (10th Cir.1989)) (quoting United States v. Vizcaino, 870 F.2d 52, 56 (2d Cir.1989)). “In short, ‘the Sentencing Guidelines provide — if nothing else— satisfactory procedural safeguards to satisfy the demands of the due process clause.’ ” Id. (quoting United States v. Vizcaino, 870 F.2d at 56). These procedural safeguards are set forth in 18 U.S.C. §§ 3552 and 3553 and Fed.R.Crim.P. 32. We have summarized those procedures as follows: 18 U.S.C. § 3552(d) mandates that the defendant receive a copy of his or her presentence report a minimum of ten days in advance of sentencing. Prior to imposition of sentence, the court must permit the government and the defendant to submit materials addressing the accuracy of the presentence report. 18 U.S.C. § 3553(d). Fed.R.Crim.P. 32(a)(1) also requires that the court provide the defendant with notice of the probation officer’s determination of “the sentencing classifications and sentencing guideline range believed to be applicable.” Rule 32(a)(1) guarantees that the defendant have the opportunity to comment upon these conclusions, as well as any facts contained in the presentence reports. United States v. Nuno-Para, 877 F.2d 1409, 1415 (9th Cir.1989). In addition, the sentencing court must provide a defendant with notice of an intended upward departure and afford his counsel an opportunity to comment. Id. Because a defendant is accorded an adequate opportunity to assist the district court in arriving at its sentencing decision, the Sentencing Guidelines are procedurally sufficient to survive due process scrutiny under the balancing test of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). United States v. Brady, 895 F.2d at 542-43. The Sentencing Guidelines’ procedural safeguards are not nullified by section 3B1.1. Section 3B1.1 requires the sentencing court to assess a defendant’s role in the offense and impose" }, { "docid": "22553991", "title": "", "text": "opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence.” Rule 32(a) (1). Before imposing sentence the court must “determine that the defendant and his counsel have had the opportunity to read and discuss” any presentence report and must afford the defendant and his counsel an opportunity to speak to the court and present mitigating information. Rule 32(a)(1)(A). Finally, the defendant and his counsel must be given the “opportunity to comment on the report and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in it.” Rule 32(c)(3)(A). The report itself, “not including any final recommendation as to sentence,” must in most respects be disclosed to the defendant, his counsel, and the attorney for the Government at least 10 days before sentencing, unless the defendant waives his right to that notice. Rules 32(c)(3)(A) and (C); 18 U. S. C. § 3552(d). Even when there is no full report, “[p]rior to the sentencing hearing, the court shall provide the counsel, for the defendant and the attorney for the Government with notice of the probation officer’s determination, pursuant to the provisions of subdivision (c)(2)(B), of the sentencing classifications and sentencing guideline range believed to be applicable to the case.” Rule 32(a)(1). The district court must sentence within the range set by the Guidelines, unless it finds “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.” 18 U. S. C. § 3553(b). A judge who departs from the Guidelines must “state in open court . . . the specific reason for the imposition of a sentence different from that described,” § 3553(c)(2), and a sentence outside the applicable range may be appealed, §§ 3742(a)(3), (b)(3). For all this attentive concern with procedure, neither Rule 32 nor any other provision of the Sentencing Reform Act expressly requires advance notice of a district court’s intention to depart sua sponte from the Guidelines" } ]

[ { "docid": "15602206", "title": "", "text": "was a sickness within the coverage of their policies (Tr. I, p. 27, Tr. II, pp. 72, 74, 76, 77). Here the judge dismissed because in his opinion it appeared from the proof that the plaintiff was not entitled to recover the jurisdictional amount. In such a ease, where the complaint asserts a claim in the jurisdictional amount, the action should not be dismissed unless the proof not only shows that the plaintiff cannot recover that amount, but also shows this with such certainty as to indicate a lack of good faith on the part of the plaintiff in bringing the action in the federal court. St. Paul Mercury Indemnity Co. v. Red Cab Co. (1938) 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845; McDonald v. Patton, 4th Cir., 240 F.2d 424, 426; Matthiesen v. Northwestern Mutual Insurance Company, 5 Cir. 1961, 286 F.2d 775. Appellees urge that the claim made by plaintiff for exemplary or punitive damages cannot be made in good faith. If made in good faith, punitive damages may be included in computing: the amount necessary for federal jurisdiction. Young v. Main, 8 Cir. 1934, 72 F.2d 646. However, if under the applicable state law it woüld be legally impossible to recover actual and exemplary damages, the addition of such exemplary damages to the claim will not create a sufficient good faith claim. In a diversity case, we are required to follow the state law of Oregon. Erie R. Co. v. Tompkins (1938) 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. Defendants say the law of Oregon prevents recovery of exemplary ox punitive damages for fraud except where the fraud is aggravated, “as where it is gross, malicious, or wanton,” (Cays v. McDaniel, et al., (1955) 204 Or. 449 at 457-458, 283 P.2d 658, 661-662) and citing in support of that theory Perez v. Central Nat’l Ins. Co. of Omaha, (1958) 215 Or. 107, 372 P.2d 1066; Ridgeway v. McGuire, (1945) 176 Or. 428, 158 P.2d 893. We do not find them based on a factual situation similar to the peculiar ones here alleged" } ]

[ { "docid": "10904608", "title": "", "text": "in controversy for the underlying breach of contract claim does not surpass the threshold jurisdictional amount for federal subject matter jurisdiction. In addition to the breach of contract allegation, plaintiff states a claim for attorney’s fees and punitive damages. Of course, attorney’s fees and punitive damages, when allowed by applicable law, may be included in determining the amount in controversy. See Bell v. Preferred Life Assurance Society, 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943); Premier Industry Corp. v. Texas Industry Fastener Co., 450 F.2d 444 (5th Cir. 1971). Defendant challenges such an inclusion by arguing that the allegations are insufficient to state a claim upon which relief can be granted. A determination of the amount in controversy for jurisdictional purposes is made at the time the action is commenced. See, e. g., Garza v. Rodrigues, 559 F.2d 259, rehearing denied, 568 F.2d 1367, cert. denied, 439 U.S. 877, 99 S.Ct. 215, 58 L.Ed.2d 191 (1977). Subsequent events, such as recovery of a lesser amount, the probability of a judgment notwithstanding the verdict if a jury awards the full amount prayed for, or partial summary judgment reducing the claim below the requisite amount, do not divest the court of jurisdiction. See generally C. Wright & A. Miller, supra § 3702, at 379-83. Instead, the appropriate standard to justify dismissal under Rule 12(b)(1) is whether it appears to a legal certainty that the claim is for less than the jurisdictional amount. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). This standard is often narrowly construed to support a finding of subject matter jurisdiction. See, e. g., Dassinger v. South Central Bell Telephone Co., 505 F.2d 672 (5th Cir. 1974); Johns-Manville Sales Corp. v. Mitchell Enterprises, Inc., 417 F.2d 129 (5th Cir. 1969). Only three situations clearly meet the legal certainty standard: (1) when the terms of a contract limit the plaintiff’s possible recovery; (2) when a specific rule of law or measure of damages limits the amount of damages recoverable; and (3) when independent facts show that the" }, { "docid": "12478950", "title": "", "text": "the Idaho Supreme Court held that the Unfair Claim Settlement Practices Act, Idaho Code § 41-1329 (1977), does not give the insured a private right of action against the insurer. Therefore, the third cause of action will be dismissed. The remaining issues deal entirely with whether the plaintiff has alleged a sufficient amount in controversy for jurisdiction to obtain in federal court. The long established rule for determining federal jurisdiction was stated by the Supreme Court in St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938): 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 ... But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed ... the suit will be dismissed. Accordingly, failure to properly allege a sufficient jurisdictional amount renders the complaint defective. However, “[defective allegations of jurisdiction may be amended ... in the trial or appellate courts.” 28 U.S.C. § 1653; Schlesinger v. Council man, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed. 2d 591 (1975). Moreover, if actual damages are less than the jurisdictional amount but, when combined with punitive damages, the total amount is greater than the jurisdictional amount, federal jurisdiction exists. Bell v. Preferred Life Assurance Soc’y, 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943); Davenport v. Mutual Benefit Health and Accident Ass’n, 325 F.2d 785 (9th Cir.1963). In his first cause of action, the plaintiff alleges a breach of contract. His prayer for relief includes emotional distress but not punitive damages. In Brown v. Fritz, 108 Idaho 357, 699 P.2d 1371, 1377 (1985), the Idaho Supreme Court held that in Idaho, when damages are sought for breach of a contractual relationship, there can be no recovery for emotional distress suffered by a plaintiff. If the conduct of a defendant has been sufficiently outrageous, we view" }, { "docid": "22859253", "title": "", "text": "that the plaintiff was never entitled to recover the jurisdictional amount, the case must be dismissed, even if the jurisdictional deficiency becomes evident only after trial. E.g., id., 303 U.S. at 290, 58 S.Ct. at 591; City of Boulder v. Snyder, 396 F.2d 853, 856 (10th Cir.1968); Lynn v. Smith, 193 F.Supp. 887, 894 (W.D.Pa.1961). It has neither been pleaded nor at any time asserted in this litigation that Upp or any class member is entitled to more than $50,000 in compensatory damages. Indeed, even if every cent of sweep fees Upp paid was unlawfully collected by Mellon, his compensatory damages would be only slightly over $4,000. The complaint does, however, include a demand for punitive damages. When both actual and punitive damages are recoverable, punitive damages are properly considered in determining whether the jurisdictional amount has been satisfied. Bell v. Preferred Life Assur. Soc’y, 320 U.S. 238, 240, 64 S.Ct. 5, 6, 88 L.Ed. 15 (1943); A.F.A. Tours, Inc. v. Whitchurch, 937 F.2d 82, 87 (2d Cir.1991); Klepper v. First Am. Bank, 916 F.2d 337, 341 (6th Cir.1990). We have held, however, that when a claim for punitive damages is “patently frivolous and without foundation” because such damages are unavailable as a matter of law, that claim must be stricken from the amount in controversy. Gray v. Occidental Life Ins. Co., 387 F.2d 935, 936 (3d Cir.1968). In addition, when it appears that such a claim comprises the bulk of the amount in controversy and may have been colorably asserted solely or primarily for the purpose of conferring jurisdiction, that claim should be given particularly close scrutiny. 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). We turn then to the question of whether punitive damages may be recovered in Pennsylvania against a trustee. If they cannot, then this case must be dismissed for want of jurisdiction. B. The availability of punitive damages against a trustee is a quintessential state issue which a federal court must resolve by reference to the law as" }, { "docid": "20802287", "title": "", "text": "correct reading of the law. As the Court stated in Snyder v. Harris, 394 U.S. 332, 335, 89 S.Ct. 1053, 1056, 22 L.Ed.2d 319 (1969), aggregation is permitted “in eases in which two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest” (emphasis added). Here, each participant has rights deriving from his separate contract. This fact critically distinguishes the case from those relied on by the Beekermans. Since aggregation is impermissible, jurisdiction over the non-derivative suit can be sustained only if the Beekermans’ individual claim satisfies the jurisdictional amount. They argue that it does, because the jurisdictional requirement is met both by their claim for compensatory damages and by their demand for punitive damages. The rule governing dismissal for lack of the jurisdictional amount was clearly stated 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): “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 288-289, 58 S. Ct. at 590 (footnotes omitted). Accordingly, if there is any possibility whatever that the Beekermans could recover either compensatory or punitive damages in excess of ten thousand dollars, dismissal is improper. Taking the question of punitive damages first, we note that punitive damages may provide the basis for jurisdiction unless “it is apparent to a legal certainty from the complaint that [plaintiffs] could not recover . sufficient punitive damages to make up the requisite [amount].” Bell v. Preferred Life Assurance Society, 320 U.S. 238, 240, 64 S.Ct. 5, 6, 88 L.Ed. 15 (1943). In the leading case of Walker v. Sheldon, 10 N.Y.2d 401, 233 N.Y.S.2d 488, 179 N.E.2d 497 (1961), the New York Court of Appeals stated that “there may be" }, { "docid": "21842563", "title": "", "text": "been permitted only ... in cases in which two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest.” Snyder, 394 U.S. at 335, 89 S.Ct. at 1056. The defendant erroneously asserts that this Court cannot look past the pleadings to assess the validity of the punitive damages claim. The correct rule is found in Dixon v. Northwestern National Bank of Minneapolis, 276 F. Supp. 96 (D.Minn.1967): “It is well settled that punitive damages may be added to actual damages to attain the jurisdictional minimum, (citations omitted). But such punitive damages may not be added to actual damages when their recovery is impossible to a legal certainty under the applicable state law. Bell v. Preferred Life Assur. Soc’y., 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943); Hedberg v. State Farm Mut. Automobile Ins. Co., 350 F.2d 924 (8th Cir. 1965); Ringsby Truck Lines Inc. v. Beardsley, 331 F.2d 14 (8th Cir. 1964). Since under the diversity grant this court applies the law of the state in which it sits, Minnesota law must be examined to determine whether punitive damages are recoverable.” (emphasis added), at 103, 104. On the basis of the pleadings and record before this Court, it is clear Kinsey’s claim for punitive damages is deficient in two respects. Kinsey’s claim that GMAC willfully and intentionally violated N.D.C.C. § 51-13-03 is a claim arising out of a contract between the two parties. Under the North Dakota law, such a claim will not support a demand for punitive damages. Then, too, N.D. C.C. § 32-03-07 limits punitive damages to those situations where the defendant has been guilty of oppression, fraud, or malice. An allegation of an intentional or willful act is not an allegation of oppression, fraud or malice. It therefore appears to a legal certainty Kinsey cannot recover punitive damages in this case. As this Court has no jurisdiction, the case is remanded to the state court, pursuant to Title 28 U.S.C. Section 1447(c), without costs. The removal bond is exonerated. . N.D.C.C. § 32-03-07 provides: “In" }, { "docid": "13308688", "title": "", "text": "§ 1332, and that the total amount in controversy has ballooned to $1.5 billion. See Bell v. Preferred Life Assurance Society, 320 U.S. 238, 240, 64 S.Ct. 5, 88 L.Ed. 15 (1943) (where both actual and punitive damages are recoverable, each must be considered to determine jurisdictional amount). The defendant insurance companies also appear to rely on the availability of punitive damages, as we explain below, though they principally complain that everyone proceeded in good faith below and that they do not wish to lose their favorable judgment on the merits. We have no quarrel in principle with the idea that punitive damages may sometimes be taken into account in deciding whether the proper amount is in controversy. As we have written before: [w]here punitive damages are required to satisfy the jurisdictional amount in a diversity case, a two-part inquiry is necessary. The first question is whether punitive damages are recoverable as a matter of state law. If the. answer is yes, the court has subject matter jurisdiction unless it is clear “beyond a legal certainty that the plaintiff would under no circumstances be entitled to recover the jurisdictional amount.” Cadek v. Great Lakes Dragaway, Inc., 58 F.3d 1209, 1211-12 (7th Cir.1995), quoting Risse v. Woodard, 491 F.2d 1170, 1173 (7th Cir.1974). Generally, we give plaintiffs the benefit of the doubt in these matters, but a complaint will be dismissed if it “appearfs] to a legal certainty that the claim is really for less than the jurisdictional amount.” See, e.g., Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955, 957 (7th Cir.1998), quoting St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938). And a claim for actual damages that vastly exceeds the apparent amount at stake ($600 or so) and asserts a right to punitive damages at the far upper end of the possible distribution of outcomes must be assessed critically; otherwise, the statutory limits on federal court jurisdiction could be undermined. Compare Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955 (7th Cir.1998). Indiana does allow the award of punitive" }, { "docid": "10639884", "title": "", "text": "policy is the measure of the amount in controversy. See, e.g., McCord v. Minn. Mut. Life Ins. Co., 346 F.3d 830, 834-35 (8th Cir.2003) (citing In re Prudential Ins. Co. of Am. Sales Practices Litig., 962 F.Supp. 450, 503 (D.N.J.1997), aff'd, 148 F.3d 283 (3d Cir.1998) (“Where plaintiffs seek equitable relief pertaining to the enforcement of insurance policies, the face value of the policy is the measure of the amount in controversy.”), and Guardian Life Ins. Co. of Am. v. Muniz, 101 F.3d 93, 94 (11th Cir. 1996) (noting that the face value of life insurance policies constitutes the amount in controversy)); see also Mass. Cas. Ins. Co. v. Harmon, 88 F.3d 415, 416 (6th Cir.1996) (following the “unanimous federal rule” that the face value of the policy must be considered in determining whether the jurisdictional amount has been satisfied). In this case, the face value of the policy, taken alone, satisfies the jurisdictional amount. The Court further notes that Plaintiffs seek other compensatory and punitive damages, both of which may be considered in determining the amount in controversy. Flowers v. EZPawn Okla., Inc., 307 F.Supp.2d 1191, 1198 (N.D.Okla.2003) (citing Bell v. Preferred Life Assur. Soc’y, 320 U.S. 238, 240, 64 S.Ct. 5, 88 L.Ed. 15 (1943)). Plaintiffs also claim attorney fees, which Defendants rightly note can be substantial in and of themselves. Taken together, the Court finds that Defendants have made an adequate showing that the amount in controversy in this case exceeds $75,000, such that jurisdiction may be properly exercised by this Court. See, e.g., St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938) (setting forth the axiomatic standard that “[i]t must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal”). Finally, the Court notes that, as part of their Notice of Removal, Defendants at tached correspondence indicating that they had invited Plaintiffs to stipulate to damages being less than $75,000, which invitation Plaintiffs refused, stating only that they had pled in compliance with 12 Okla. Stat." }, { "docid": "16598842", "title": "", "text": "of law. A Court must consider claims for both actual and punitive damages in determining jurisdictional amount. Bell v. Preferred Life Assurance Society, 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943). It is clear that appellant’s claims for overdue wages, unpaid consulting fees, and liquidated damages are not sufficient to satisfy the $10,000 jurisdictional amount requirement. Thus the critical issue in determining whether the Court below properly dismissed the action for lack of jurisdiction is whether the complaint stated a valid claim for punitive damages. Appellant sought punitive damages of $25,000, alleging that- “[t]he defendant’s withholding of wages past due is a part of a pattern of past practice of willful and wanton aggravated oppression, malice and wicked conduct by the defendant. The defendant has no justifiable basis upon which such withholding can be made.” The standards for determining whether $10,000 is in controversy are well established. “[T]he 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, 288-89, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938); see Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 276, 97 S.Ct. 568, 570, 50 L.Ed.2d 471 (1977) (describing Red Cab as “[t]he leading case”). The issue of whether the jurisdictional amount requirement is satisfied thus takes on two aspects in a diversity action over which the Court lacks subject matter jurisdiction absent a valid claim for punitive damages. First, are punitive damages recoverable under local law under the circumstances alleged? Second, is it sufficiently certain as a matter of federal law that the complaint does not satisfy the jurisdictional amount? Under District of Columbia law punitive damages are awarded for breach of contract but only in “rare” cases. Mark Keshishian & Sons, Inc. v. Washington Square, Inc., 414 A.2d 834, 842 (D.C.1980). To justify an award of punitive damages the breach must be aggravated by particularly egregious" }, { "docid": "2383136", "title": "", "text": "commenced prior to May 18, 1989, the $10,000 amount in controversy requirement in effect before the 1988 amendments to 28 U.S.C. § 1332 applies. . See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). . See id.; Seafoam, Inc. v. Barrier Systems, Inc., 830 F.2d 62, 66 (5th Cir.1987). . Bell v. Preferred Life Assur. Soc., 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943). . A review of the damages sought in the instant action finds one complaint seeking $30,000,000,-000 (Watson), another seeking $2,750,000,000 (Cauley), and a third, the \"Master Pleadings,\" seeking unspecified and unlimited punitive damages. The essence of Shell’s argument is that 18,000 class members multiplied by $10,000 is only 180 million dollars, an amount well below the total of the good faith ad damnum prayers. . See La.Civ.Code Ann. art. 2315.3 (West Supp. 1992). . General Telephone Co. v. Equal Employment Opportunity Comm’n, 446 U.S. 318, 330, 100 S.Ct. 1698, 1706, 64 L.Ed.2d 319 (1980). . Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. July 1981) (citations omitted). . Jenkins, 782 F.2d at 472; 7A C. Wright & A. Miller, supra, § 1777, at 519. . Jenkins, 782 F.2d at 472 (emphasis added). . Brown & Root also points to Yandle v. PPG Industries, Inc., 65 F.R.D. 566 (E.D.Tex.1974) and the Advisory Committee note to Fed. R.Civ.P. 23(b)(3) in support of its proposition that, because mass tort cases often present disparate issues, they are generally inappropriate for class action litigation. These authorities have no application to the instant litigation in which many people suffered injury resulting from a common disaster and seek recovery on identical theories. . Jenkins, 782 F.2d at 472. . To the extent that Brown & Root argues that the main issue in this litigation is Shell’s liability for punitive damages and that the issue of its liability does not predominate, Brown & Root's argument fails to persuade. The plaintiff class has asserted claims for negligence against Brown & Root. The plaintiffs must therefore prove Brown" }, { "docid": "5304115", "title": "", "text": "ordinary negligence — failure to segregate flammable materials, failure to investigate a strong odor). See also Burke, 904 F.2d at 183 n. 5 (suggesting methods of proof by admission and otherwise by which plaintiffs could have demonstrated that the defendant knew of and appreciated the risks of driving while fatigued); McClellan v. Health Maintenance Org. of Pa., 413 Pa.Super. 128, 604 A.2d 1053, 1061 (premature to dismiss plaintiffs claim for punitive damages in medical malpractice action), appeal denied, 532 Pa. 664, 616 A.2d 985 (1992). At this early stage of the case, the Court cannot assume that plaintiffs will be unable to present any evidence to support a claim for punitive damages. III. Original Jurisdiction Over Count II of the Amended Complaint Section 1332 provides that: The district courts shall have original jurisdiction of all civil actions where the amount in controversy exceeds the sum of $50,000, exclusive of interest and costs, and is between— (1) citizens of different States.... 28 U.S.C. § 1332(a). Ordinarily, when the court examines the issue of amount in controversy, “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, 288-89, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). In determining whether the necessary amount in controversy is presented to support diversity jurisdiction, actual and exemplary damages must be aggregated. Bell v. Preferred Life Assurance Soc., 320 U.S. 238, 240, 64 S.Ct. 5, 6, 88 L.Ed. 15 (1943). However, the fact that plaintiffs are not prohibited from asserting punitive damages as a matter of law does not dispose of the issue of whether plaintiffs have stated a sufficient amount of damages in Count II of the Amended Complaint to satisfy the amount in controversy requirement for original jurisdiction. One inquiry, as defined by the Court of Appeals, is whether “a claim for punitive damages is ‘patently frivolous and without foundation’ because such damages are unavailable as" }, { "docid": "22833252", "title": "", "text": "erroneous view of the law regarding the inclusion of statutory penalties in the calculation of the amount in controversy, see infra, we would reverse even under the more deferential abuse of discretion standard. \"A court abuses its discretion when its ruling is based on an erroneous view of the law.” Chaves v. M/V Medina Star, 47 F.3d 153, 156 (5th Cir.1995) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990)). . Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir.1983). See also Allstate Ins. Co. v. Hilbun, 692 F.Supp. 698, 700 (S.D.Miss.1988) (\"In actions for declaratory or injunctive relief, the amount in controversy is measured by the value of the object of the litigation.\"). . Hilbun, 692 F.Supp. at 700 (quoting Leininger, 705 F.2d at 729). See, e.g., Stonewall Ins. Co. v. Lopez, 544 F.2d 198, 199 (5th Cir.1976) (holding that amount in controversy exceeded the requisite $10,000, as the plaintiff insurer would be required to provide a defense to its insured in a pending state court action if the court found that the policy provided coverage). . See Foret v. Southern Farm Bureau Life Ins. Co., 918 F.2d 534, 536 (5th Cir.1990) (\"[A]ttorney's fees may be included in determining the jurisdictional amount.\"); Hilbun, 692 F.Supp. at 700 (\"Punitive damages can be included to reach the amount in controversy requirement if, under the governing law of the suit, they are recoverable.\") (citing Bell v. Preferred Life Assurance Soc'y, 320 U.s. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943)). . Gaitor v. Peninsular & Occidental Steamship Co., 287 F.2d 252, 253-54 (5th Cir.1961). . St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938); De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.), cert. denied, 516 U.S. 865, 116 S.Ct. 180, 133 L.Ed.2d 119 (1995). . St. Paul Mercury. 303 U.S. at 289, 58 S.Ct. at 590. . De Aguilar, 47 F.3d at 1409. . Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow" }, { "docid": "8923924", "title": "", "text": "in controversy. Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir.1994). Nevertheless, the Court may dismiss the complaint if it appears to a “legal certainty” that plaintiffs claims are really for less than the jurisdictional amount. St. Paul Mercury Indemnity Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938). In so doing, the Court is required to look at plaintiffs claims as of the date that the complaint was filed and aggregate all of her claims, since the diversity statute confers jurisdiction over “civil actions” rather than specific claims alleged in a complaint. Wolde-Meskel v. Vocational Instruction Project, 166 F.3d 59, 62 (2d Cir.1999). Additionally, the Court should include plaintiffs punitive damage claims to the extent that punitive damages may be recovered under governing state law. Bell v. Preferred Life Assur. Soc., 320 U.S. 238, 240, 64 S.Ct. 5, 88 L.Ed. 15 (1943); Schreiber v. Blankfort, 76 F.R.D. 474, 476 (D.Conn.1977). The Court has no difficulty in concluding that plaintiffs demand for $10,000,000 was not made in good faith. No reasonable jury could award plaintiff damages of this magnitude based on the facts alleged by plaintiff. More troubling, however, is the question of whether the Court can conclude with “legal certainty” that plaintiffs claims, in the aggregate, do not exceed $75,000. Plaintiff has asserted claims for libel, slander, fraud, harassment, and filing false statements with the police leading to plaintiffs arrest. She has sought recovery of certain monies and property provided to defendants, as well as damages for physical and emotional injuries and damage to her reputation. She also seeks punitive damages. Although her special damages (on which defendants focus almost exclusively) clearly do not approach the $75,000 mark, her other compensatory damages are far more difficult to quantify with any degree of certainty. Although we have grave reservations as to whether this case should be in court, much less in federal court, nevertheless, given the breadth of plaintiffs claims for damages, we cannot conclude with “legal certainty” that plaintiff has not met the amount in controversy requirement in order to invoke this" }, { "docid": "8923923", "title": "", "text": "of the items she claims to have sent to defendants; her pain and suffering caused by defendants’ libel and fraud; damages for her resulting depression and problems with eating and sleeping; plus punitive damages. She also claims to have “suffered great damages” as a result of defendants’ alleged public libel of her, which she claims ruined her life, her reputation, her character, and her friendships. Plaintiffs complaint, on its face, satisfies the amount in controversy requirement. She has pled damages of $10,000,000. Under the test established by the Supreme Court in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938), “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 jurisdic tional amount to justify dismissal.” The Second Circuit has stated that there is a “rebuttable presumption” that the face of the complaint is a good faith representation of the actual amount in controversy. Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir.1994). Nevertheless, the Court may dismiss the complaint if it appears to a “legal certainty” that plaintiffs claims are really for less than the jurisdictional amount. St. Paul Mercury Indemnity Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938). In so doing, the Court is required to look at plaintiffs claims as of the date that the complaint was filed and aggregate all of her claims, since the diversity statute confers jurisdiction over “civil actions” rather than specific claims alleged in a complaint. Wolde-Meskel v. Vocational Instruction Project, 166 F.3d 59, 62 (2d Cir.1999). Additionally, the Court should include plaintiffs punitive damage claims to the extent that punitive damages may be recovered under governing state law. Bell v. Preferred Life Assur. Soc., 320 U.S. 238, 240, 64 S.Ct. 5, 88 L.Ed. 15 (1943); Schreiber v. Blankfort, 76 F.R.D. 474, 476 (D.Conn.1977). The Court has no difficulty in concluding that plaintiffs demand for $10,000,000 was not made in good" }, { "docid": "5304116", "title": "", "text": "“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, 288-89, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). In determining whether the necessary amount in controversy is presented to support diversity jurisdiction, actual and exemplary damages must be aggregated. Bell v. Preferred Life Assurance Soc., 320 U.S. 238, 240, 64 S.Ct. 5, 6, 88 L.Ed. 15 (1943). However, the fact that plaintiffs are not prohibited from asserting punitive damages as a matter of law does not dispose of the issue of whether plaintiffs have stated a sufficient amount of damages in Count II of the Amended Complaint to satisfy the amount in controversy requirement for original jurisdiction. One inquiry, as defined by the Court of Appeals, is whether “a claim for punitive damages is ‘patently frivolous and without foundation’ because such damages are unavailable as a matter of law, [such that] that claim must be stricken from the amount in controversy.” Packard v. Provident Nat’l Bank, 994 F.2d 1039, 1046 (3d Cir.1993) (quoting Gray v. Occidental Life Ins. Co., 387 F.2d 935, 936 (3d Cir.1968)), cert. denied sub nom. Upp v. Mellon Bank, N.A., — U.S. -, 114 S.Ct. 440, 126 L.Ed.2d 373 (1993). But “[i]n addition, when it appears that such a claim comprises the bulk of the amount in controversy and may have been eolorably asserted solely or primarily for the purpose of conferring jurisdiction, that claim should be given particularly close scrutiny.” Id. (citing 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)). See also Singer v. State Farm Mutual Auto. Ins. Co., 785 F.Supp. 510, 512 (E.D.Pa.1992) (questioning whether the Pennsylvania statute allowing punitive damages for bad faith conduct by insurers would apply to plaintiffs claim for unpaid medical bills and determining that, in any event, plaintiff could not use a" }, { "docid": "22859252", "title": "", "text": "94 S.Ct. 505, 512, 38 L.Ed.2d 511 (1973). In St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938), the Supreme Court laid down the standard for determining whether the requisite amount in controversy has been properly alleged: The rule governing dismissal for want of jurisdiction in cases brought in the federal court is 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 that the jurisdictional amount to justify dismissal.... 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. When it appears to a legal certainty that the plaintiff was never entitled to recover the jurisdictional amount, the case must be dismissed, even if the jurisdictional deficiency becomes evident only after trial. E.g., id., 303 U.S. at 290, 58 S.Ct. at 591; City of Boulder v. Snyder, 396 F.2d 853, 856 (10th Cir.1968); Lynn v. Smith, 193 F.Supp. 887, 894 (W.D.Pa.1961). It has neither been pleaded nor at any time asserted in this litigation that Upp or any class member is entitled to more than $50,000 in compensatory damages. Indeed, even if every cent of sweep fees Upp paid was unlawfully collected by Mellon, his compensatory damages would be only slightly over $4,000. The complaint does, however, include a demand for punitive damages. When both actual and punitive damages are recoverable, punitive damages are properly considered in determining whether the jurisdictional amount has been satisfied. Bell v. Preferred Life Assur. Soc’y, 320 U.S. 238, 240, 64 S.Ct. 5, 6, 88 L.Ed. 15 (1943); A.F.A. Tours, Inc. v. Whitchurch, 937 F.2d 82, 87 (2d Cir.1991); Klepper v. First Am. Bank, 916 F.2d" }, { "docid": "3282011", "title": "", "text": "purpose of conferring jurisdiction, the suit will be dismissed. Jensen, 337 F.2d at 162 (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). Plaintiffs only response regarding the amount of damages is: “A careful reading of the complaint shows damages in excess of $24,000.00.” Plaintiff's Response to Hewlett-Packard’s Support of Gateway’s Motion to Dismiss or Stay, ¶ 1 (Doc. #23) filed January 25, 2000 (emphasis added). The Court agrees with plaintiffs statement. In the opening paragraph of the complaint, plaintiff alleges generally that defendants have caused him personal damages in excess of $350,000 and caused class damages exceeding $350,000. At the end of the complaint, plaintiff itemizes the damages as follows: $350,000 in actual damages (including lost time of over $300,-000, see Complaint, ¶ 3) and $3,500,000 in punitive damages against Gateway; $24,000 plus unitemized punitive damages against Gateway; and $24,000 plus unitemized punitive damages against Hewlett Packard. Complaint, pp. 6-7. Merely alleging damages in excess of $24,000 is not sufficient to meet plaintiffs burden of establishing that jurisdiction is proper. While plaintiff is not necessarily required to specify an exact amount of punitive damages, see, e.g., Bell v. Preferred Life Assur. Soc. of Montgomery, Ala., 320 U.S. 238, 241, 64 S.Ct. 5, 88 L.Ed. 15 (1943) (issue is whether it appears to a legal certainty that plaintiff could not recover sufficient actual and punitive damages to meet jurisdictional requirement), plaintiff must allege enough facts to convince the Court that recoverable damages will bear a reasonable relation to the minimum jurisdictional requirement. See Gibson, 478 F.2d at 221. In the complaint, plaintiff alleges only that Hewlett-Packard sold him a scanner without warning him that it was not compatible with Gateway computers, and that Hewlett-Packard had a duty to warn of any incompatibility problems. See Complaint, ¶ 7. He alleges no facts to support actual damages of $24,000, nor does he allege facts to show that he is entitled to punitive damages or the amount thereof. Plaintiff argues that the Court has jurisdiction over joinder claims against Hewlett-Packard under" }, { "docid": "965477", "title": "", "text": "Zahn has been effectively overruled. They assert that because class actions under Rule 23 of the Federal Rules of Civil Procedure are not listed as an exemption from Section 1367, the court may exercise its supplemental jurisdiction. While there appears to be a line of federal authority in support of plaintiffs’ contention, the vast majority of class action cases interpreting this statute have reached the opposite result. Riverside Transportation, Inc. v. Bellsouth Telecommunications, Inc., 847 F.Supp. 453, 455 n. 7 (M.D.La.1994). As well, the legislative history of Section 1367 cites the Supreme Court’s opinion in Zahn and provides that “[this] section is not intended to affect the jurisdictional requirements of 28 U.S.C. § 1332 in diversity-only class actions.” H.R.Rep. No. 734, 101st Cong., 2d Sess. 29 (1990), reprinted in 1990 U.S.C.C.A.N. pp. 6802, 6875. In any event, it is not inconceivable that a jury, upon a proper finding, could award plaintiffs punitive damages with respect to their fraud claim in excess of the jurisdictional amount, nor is there any evidence establishing to any legal certainty, that such an award is or would be unsubstantiated. See Watson v. Shell Oil Company, 979 F.2d 1014, 1021 (5th Cir.1992), rehearing en banc granted, 990 F.2d 805 (1993) (both compensatory and punitive damages must be considered in determining the amount in controversy) (citing Bell v. Preferred Life Assurance Society, 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943)); Petroleum Transit Company v. Copeland, 240 F.Supp. 585, 586 (E.D.S.C.1965) (“mere belief by the Court that plaintiff will not recover the amount demanded is not a sufficient basis to deny jurisdiction; it must appear to a legal certainty”) (citing St. Paul Mercury Indemnity Company v. Red Cab Company, 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938)). As such, EDS’s contention that certain members are jurisdictionally barred from class certification is without merit. Aside from this jurisdictional argument, EDS still insists that plaintiffs have failed to meet the “numerosity test.” Of the seventy-six vested individuals, EDS asserts that only fifty-seven have a projected difference in retirement benefits if funding were to begin," }, { "docid": "14952224", "title": "", "text": "$150.00. Dorothy Curtis was compelled to expend $1,000.00 in attorney fees in order to free her husband from jail. In this action, John seeks compensatory damages of $100,000.00; his wife asks compensatory damages of $50,000.00; and together they claim punitive damages of $200,000.00. Despite these demands, I find that, to a legal certainty, the actual amount put in controversy by each of the plaintiff’s claims does not exceed $10,000.00. We begin with the plaintiffs’ respective out-of-pocket expenses: $150.00 for John, and $1,000 for Dorothy. But each plaintiff claims a far greater sum is due: $100,000 and $50,-000 respectively, and $200,000 jointly. Generally, the presence of the jurisdictional amount is to be determined by the good faith allegations of the complaint. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Ringsby Truck Lines, Inc. v. Beardsley, 331 F.2d 14, 15 (8th Cir. 1964); Jackson v. Kuhn, 254 F.2d 555, 559 (8th Cir. 1958). Demands for punitive damages which are conceivably recoverable may be accounted in determining the existence of the jurisdictional amount. Bell v. Preferred Life Assur. Soc. of Montgomery, 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943); Gray v. Occidental Life Ins. Co. of California, 387 F.2d 935 (3d Cir. 1968), cert. den. 391 U.S. 926, 88 S.Ct. 1825, 20 L.Ed.2d 665 (1968); Dixon v. Northwestern National Bank of Minneapolis, supra, note 1. However, if the existence of a jurisdictional element, such as the value in controversy has, as here, been controverted, the party claiming jurisdiction has the burden of proving its existence. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L. Ed. 1135 (1936); Hulsenbusch v. Davidson Rubber Co., 344 F.2d 730 (8th Cir. 1965), cert. den. 382 U.S. 977, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966); Ringsby Truck Lines, Inc. v. Beardsley, supra; Young v. Cooperative Refinery Ass’n, 320 F.2d 485 (10th Cir. 1963); Federated Mut. Imp. and Hardware Ins. Co. v. Steinheider, 268 F.2d 734 (8th Cir. 1959); Thomas v. Travelers Ins. Co., 258 F.Supp. 873 (E.D.La.1966). The particular" }, { "docid": "22833253", "title": "", "text": "state court action if the court found that the policy provided coverage). . See Foret v. Southern Farm Bureau Life Ins. Co., 918 F.2d 534, 536 (5th Cir.1990) (\"[A]ttorney's fees may be included in determining the jurisdictional amount.\"); Hilbun, 692 F.Supp. at 700 (\"Punitive damages can be included to reach the amount in controversy requirement if, under the governing law of the suit, they are recoverable.\") (citing Bell v. Preferred Life Assurance Soc'y, 320 U.s. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943)). . Gaitor v. Peninsular & Occidental Steamship Co., 287 F.2d 252, 253-54 (5th Cir.1961). . St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938); De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.), cert. denied, 516 U.S. 865, 116 S.Ct. 180, 133 L.Ed.2d 119 (1995). . St. Paul Mercury. 303 U.S. at 289, 58 S.Ct. at 590. . De Aguilar, 47 F.3d at 1409. . Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia S.A., 988 F.2d 559, 566 (5th Cir.1993), cert. denied, 510 U.S. 1041, 114 S.Ct. 685, 126 L.Ed.2d 653 (1994) (discussing a removal petition which \"merely states, without any elaboration, that `the matter in controversy cx-ceeds $50,000...\" . Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.1995). The test is whether it is more likely than not that the amount of the claim will exceed $50,000. Id. at 1336. . Id. at 1335. . Id. at 1336. . St. Paul Mercury, 303 U.S. at 292, 58 S.Ct. at 592; Seafoam, Inc. v. Barrier Sys., Inc., 830 F.2d 62, 66 (5th Cir.1987). . Allen, 63 F.3d at 1335. . We have considered a post-removal affidavit when the jurisdictional amount was ambiguous on the fáce of the state petition. See Asociacion Nacional de Pescadores, 988 F.2d at 565. In doing so, however, we explained that the affidavit helped clarify the jurisdictional facts \"as of the time of removal.” Id. (emphasis added). We have nevertheless remained vigilant to the potential" }, { "docid": "21842562", "title": "", "text": "claims of the respective members of the class are several and distinct, each must establish the requisite amount for his action to lie.” at 996, 997. This decision has been followed in the Eighth Circuit, Snyder v. Harris, 390 F.2d 204 (8th Cir. 1968), aff’d 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), and approved by the Supreme Court in Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). See also City of Chicago v. General Motors Corporation, 467 F.2d 1262, 1264 n. 11 (7th Cir. 1972); City of Inglewood v. City of Los Angeles, 451 F.2d 948 (9th Cir. 1972); Almenares v. Wyman, 453 F.2d 1075, 1085, 1086 & n. 14 (2nd Cir. 1971). The above cases illustrate that if the representative plaintiff cannot meet the jurisdictional requirement, the class action must be dismissed, unless he falls within a situation where aggregation is permissible. PUNITIVE DAMAGES GMAC correctly asserts that the punitive damages claim of Kinsey is subject to aggregation to meet the jurisdictional amount requirement. '“Aggregation has been permitted only ... in cases in which two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest.” Snyder, 394 U.S. at 335, 89 S.Ct. at 1056. The defendant erroneously asserts that this Court cannot look past the pleadings to assess the validity of the punitive damages claim. The correct rule is found in Dixon v. Northwestern National Bank of Minneapolis, 276 F. Supp. 96 (D.Minn.1967): “It is well settled that punitive damages may be added to actual damages to attain the jurisdictional minimum, (citations omitted). But such punitive damages may not be added to actual damages when their recovery is impossible to a legal certainty under the applicable state law. Bell v. Preferred Life Assur. Soc’y., 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943); Hedberg v. State Farm Mut. Automobile Ins. Co., 350 F.2d 924 (8th Cir. 1965); Ringsby Truck Lines Inc. v. Beardsley, 331 F.2d 14 (8th Cir. 1964). Since under the diversity grant this court applies the law of" } ]

[ { "docid": "6693795", "title": "", "text": "attorney general in their official capacities as the parties responsible for enforcement of the unconstitutional statute against the Loyalists. As against the Regulars, the Fifth Circuit in Riddell concluded that the effect of a fee award in this case would be to create a debt of the former Regular faction that will be assumed by the unified party and paid from unified party funds. JOHNSON FACTORS In awarding statutorily authorized attorneys’ fees in this circuit, the district courts must follow the guidelines set forth by the Fifth.Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Copeland v. Marshall, 641 F.2d 880, 883 (D.C.Cir.1980); Copper Liquors v. Adolph Coors Co., 624 F.2d 575, 581 (5th Cir. 1980). What is required of the district court “. .. is not a meaningless exercise in parroting and answering of Johnson’s twelve criteria, but some assurance that the court has arrived at a just compensation based on appropriate standards.” Copper Liquors v. Adolph Coors Co., 624 F.2d at 581. The district judge must “explain the findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected his decision.” Id. Essentially the district court must ascertain the nature and extent of the services rendered by the attorney and value these services according to the customary fee and quality of work. Copper Liquors v. Adolph Coors Co., 624 F.2d at 583; Matter of First Colonial Corp. of America, 544 F.2d 1291, 1299-1300 (5th Cir. 1977). Finally, the court should adjust the compensation on the basis of other Johnson factors. Id. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) directs that the district court must consider the following factors in calculating an award of attorneys’ fees: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or" } ]

[ { "docid": "4141528", "title": "", "text": "the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-719. The Johnson standard has been further refined by the Fifth Circuit’s adoption of the “lodestar” method of calculating attorneys’ fees. Graves, 700 F.2d at 222. “Under this refinement of the Johnson text, “ ‘[t]he “lodestar” is equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work. The lodestar is then adjusted to reflect other factors such as the contingent nature of the suit and the quality of the representation.’ ” Id. (quoting Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1093 (5th Cir.1982)). The District Court “should not award a contingency multiplier in every case. Under appropriate circumstances, attorneys may be adequately compensated through the reasonable calculation of the lodestar.” Id. at 224. The District Court “is afforded broad discretion to determine the award of attorneys’ fees.” Greenhaw v. Lubbock Beverage Ass’n, 121 F.2d 1019, 1031 (5th Cir. 1983) (citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)). In arriving at the appropriate amount, the District Court “must ‘explain the findings and reasons upon which the award is based, including an indication of how each of the twelve criteria in Johnson affected his [or her] decision.’” Copper Liquor, Inc. v. Adolph Coors Company, 624 F.2d 575, 581 (5th Cir.1980) (quoting In re First Colonial Corp., 544 F.2d 1291, 1300 (5th Cir.), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977)). Although all twelve factors must be considered, the “Johnson criteria should be applied flexibly, not as a requirement that district courts parrot the twelve factors.” Gulf Union Indus., Inc. v. Formation Sec., Inc., 842 F.2d 762, 767 (5th Cir.1988). The District Court “should pay special heed to Johnson criteria numbers (1) the time and labor involved; (5) the customary fee; (8) the amount involved and the result obtained; and (9) the experience, reputation, and ability of counsel.”" }, { "docid": "22439256", "title": "", "text": "approval of a settlement reached in a non-antitrust, private class action suit, the court expressed “some doubt about whether Attorneys General who, of course, are compensated by the public may ever recover attorneys’ fees and expenses, ....” 594 F.2d at 1130 (footnote omitted). In a footnote, however, the court recognized that the question was “an ‘interesting’ and apparently open one.” 594 F.2d at 1130 n.42. Moreover, the court explicitly refused to decide the question. . The Attorneys General of 43 states have filed a joint brief as amici curiae urging this Court to affirm the award of reasonable attorneys’ fees to a state which is represented by its Attorney General. The amici also argue that the district court properly awarded attorneys’ fees based on prevailing market rates. . The calculations of the district court were as follows: Hours Hourly Rate Assistant Attorney Genera Genovese 287 x $65.00=$ 18,655 Assistant Attorney General DeMay 396 x 55.00 = 21,789 Assistant Attorney General Juech 457 x 50.00 = 22,850 $ 63,285 . The Waters analysis is very similar to that of the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The Fifth Circuit recently reexamined and reaffirmed the Johnson guidelines in Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581-84 (5th Cir. 1980). The court also noted that “[the Johnson test, ... is similar to the Third Circuit’s ‘lodestar’ method of computing attorneys’ fees.” Copper Liquor, 624 F.2d at 583 n.15, citing Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3rd Cir. 1973), after remand, 540 F.2d 102 (3rd Cir. 1976). . Since Illinois did not request compensation for these miscellaneous legal efforts, we need not decide whether under other circumstances compensation for this work would be appropriate. . See note 5 supra. . Defendants argue that any recovery of attorneys’ fees in excess of the single damages awarded is improper. Although several opinions suggest that a major factor in assessing attorneys’ fees is the relationship between the fees and the damages recovered, see, e. g., Milwaukee" }, { "docid": "14311755", "title": "", "text": "“the ‘product of reasonable hours times a reasonable rate’ normally provides a ‘reasonable’ attorney’s fee within the meaning of [§ 1988]”. Blum v. Stenson, 1984, 465 U.S. 886, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (quoting Hensley v. Eckerhart, 1983, 461 U.S. 424, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40, 50-51). “The product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the ‘results obtained’.” Hensley, 461 U.S. at 434, 103 S.Ct. at 1940, 76 L.Ed.2d at 51. These “other considerations” constitute the third step. 3. Adjust the lodestar on the basis of the Johnson factors that may be of significance in the particular case. We recently noted that “our circuit’s method ... is generally to apply th[e] Johnson factors after the lodestar has been calculated”. Riddell v. National Democratic Party, 5 Cir.1983, 712 F.2d 165, 170. The Supreme Court observed, however, that “many of these factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate”. Hensley, 461 U.S. at 434 n. 9, 103 S.Ct. at 1940 n. 9, 76 L.Ed.2d at 51 n. 9. We have recognized this fact, and have held that “a court need not in determining the [adjustment] consider some factor already included in the calculation of the lodestar”. Graves v. Barnes, 5 Cir.1983, 700 F.2d 220, 224. The important point is that the district court “explain the findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected his decision”. Copper Liquor, Inc. v. Adolph Coors Co., 5 Cir.1980, 624 F.2d 575, 581 (quoting Matter of First Colonial Corp. of America, 5 Cir., 544 F.2d 1291, 1300, cert. denied sub nom. Baddock v. American Benefit Life Ins. Co., 1977, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388). Based on these principles, we reverse the district court’s ruling with respect to attorney Snellings for two reasons. First, in view of our reversal" }, { "docid": "18784551", "title": "", "text": "F.2d 1383, 1385 (5th Cir.1983); Iranian Students Association v. Edwards, 604 F.2d 352, 353 (5th Cir.1979). For purposes of No. 86-3105, Western World does not dispute that Cobb is the prevailing party and is entitled to attorney’s fees. In Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), we established twelve factors which district courts must consider in deciding the amount of attorney’s fees to award to a prevailing plaintiff. The twelve factors are considered within the framework outlined in Copper Liquor, Inc. v. Adolph Coors, 684 F.2d 1087 (5th Cir.1982). Under Copper Liquor the district court should: (1) ascertain the nature and extent of the services supplied by the attorney; (2) value the services according to the customary fee and quality of the legal work; and (3) adjust the compensation on the basis of the other Johnson factors that may be of significance. 684 F.2d at 1092. The product of factors (1) and (2) is called the “lodestar.” See Nisby v. Commissioners Court, 798 F.2d 134, 136-37 (5th Cir.1986). While specific findings on individual Johnson factors involve fact determinations reviewable under the clearly erroneous standard, Brantley v. Surles, 804 F.2d 321, 327 (5th Cir.1986), the ultimate award of attorney’s fees is reviewed for abuse of discretion. Id. (citing Johnson, 488 F.2d at 717). Subsequent to our opinion in Johnson, the Supreme Court held that an award of attorney’s fees under section 1988 should normally be based on multiplying a reasonable number of hours worked by a reasonable rate of compensation. Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891, 895 (1984); Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40, 50 (1983). The Court noted, however, that the calculation of the lodestar does not end the inquiry and that other considerations may persuade the district court to increase or decrease a fee award. Hensley, 461 U.S. at 434, 103 S.Ct. at 1940, 76 L.Ed.2d at 51. After Blum and Hensley, the question arose whether district courts still had to follow the Johnson factors. In Nisby a panel" }, { "docid": "4141529", "title": "", "text": "121 F.2d 1019, 1031 (5th Cir. 1983) (citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)). In arriving at the appropriate amount, the District Court “must ‘explain the findings and reasons upon which the award is based, including an indication of how each of the twelve criteria in Johnson affected his [or her] decision.’” Copper Liquor, Inc. v. Adolph Coors Company, 624 F.2d 575, 581 (5th Cir.1980) (quoting In re First Colonial Corp., 544 F.2d 1291, 1300 (5th Cir.), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977)). Although all twelve factors must be considered, the “Johnson criteria should be applied flexibly, not as a requirement that district courts parrot the twelve factors.” Gulf Union Indus., Inc. v. Formation Sec., Inc., 842 F.2d 762, 767 (5th Cir.1988). The District Court “should pay special heed to Johnson criteria numbers (1) the time and labor involved; (5) the customary fee; (8) the amount involved and the result obtained; and (9) the experience, reputation, and ability of counsel.” Copper Li quor, 624 F.2d at 583. The District Court should refer to the particularly applicable Johnson factors in the following framework: “(1) Ascertain the nature and extent of the services supplied by the attorney; (2) Value the services according to the customary fee and quality of the legal work; and (3) Adjust the compensation on the basis of the other Johnson factors that may be of significance in the particular case.” Gulf Union Indus., Inc., 842 F.2d at 767 (quoting Copper Liquor Inc., 684 F.2d at 1092). CALCULATION OF ATTORNEYS’ FEES In the case sub judice, the prevailing party is entitled to reasonable and necessary attorneys’ fees and expenses. Plaintiff is entitled to an award of attorney’s fees pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. (1) THE TIME AND LABOR REQUIRED. In determining the reasonableness of attorney’s fees, the necessary starting point is to assess the amount of time spent by counsel on the case. Johnson, 488 F.2d at 717. In addition to a time sheet" }, { "docid": "6693796", "title": "", "text": "findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected his decision.” Id. Essentially the district court must ascertain the nature and extent of the services rendered by the attorney and value these services according to the customary fee and quality of work. Copper Liquors v. Adolph Coors Co., 624 F.2d at 583; Matter of First Colonial Corp. of America, 544 F.2d 1291, 1299-1300 (5th Cir. 1977). Finally, the court should adjust the compensation on the basis of other Johnson factors. Id. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) directs that the district court must consider the following factors in calculating an award of attorneys’ fees: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; apd (12) awards in similar cases. The Fifth Circuit has repeatedly insisted that the Johnson factors control the district courts’ computation of attorneys’ fees. Although these criteria remain central to any fee determination, we conclude that the consideration of these factors, without more, cannot guarantee a rational, reasonable setting of fees. See Copeland v. Marshall, 641 F.2d 880, 890 (D.C.Cir.1980) (en banc). “The fundamental problem with an approach that does no more than assure that the lower courts will consider a plethora of conflicting and at least partially redundant factors is that it provides no analytical framework for their application. It offers no guidance on the relative importance of each factor, whether they are to be applied differently in different contexts, or, indeed, how they are to be applied" }, { "docid": "6059343", "title": "", "text": "in the Second, Third, and District of Columbia Circuits. Copper Liquor, Inc. v. Adolph Coors Co. [Copper III], 684 F.2d 1087, 1092-93 (5th Cir.1982). Under the Fifth Circuit approach, a district court in this circuit must consider the twelve factors enumerated in Johnson v. Highway Express, 488 F.2d 714, 717-19 (5th Cir.1974) in awarding a statutorily authorized attorney fee, specifically: (1) The time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee [for similar work in the community], (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Id. Furthermore, the first, fifth, eighth, and ninth factors deserve special heed, and should be considered in the following framework: (1) Ascertain the nature and extent of the services supplied by the attorney; (2) Value the services according to the customary fee and quality of the legal work; and (3) Adjust the compensation on the basis of the other Johnson factors that may be of significance in the particular case. Copper III, 684 F.2d at 1092. Thus, the court determines a lodestar figure equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work. This lodestar is then adjusted to reflect any other applicable Johnson factors, such as quality of representation and the contingent nature of the suit. Id. at 1093. Finally, the district judge must “explain the findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected his decision.” Copper Liquor, Inc. v. Adolph Coors Co. [Copper II] 624 F.2d 575, 581 (5th Cir.1980). The court will first consider the" }, { "docid": "7787567", "title": "", "text": ". Defendants’ argument in this regard relates to every item for which discovery is sought to be compelled. The Court, explicitly or implicitly will perform this balancing test — weighing the burdensome nature of the request to the strength of the relevancy of the material — with regard to every item sought to be protected. . The standard which governs the computation of attorney’s fees in this circuit is set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). The criteria is as follows: (1) the time and labor required; (2) the novelty and the difficulty of the question involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitation imposed by the client or the circumstances; (8) the amount involved and the result obtained; (9) the experience, reputation and ability of the attorneys; (10) the \"undesirability’’ of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. The Johnson standard has been further refined by the Fifth Circuit’s adoption of the \"lodestar” method of calculating attorneys’ fees. See Graves v. Barnes, 700 F.2d 220, 222 (5th Cir.1983). “The lodestar is equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work. The lodestar is then adjusted to reflect other factors such as the contingent nature of the suit and the quality of the representation.” It is well established that the Court is empowered to exercise its informal discretion in awarding attorneys’ fees. Greenhaw v. Lubbock County Beverage Association, 721 F.2d 1019 (5th Cir.1983); Graves v. Barnes, 700 F.2d 220 (5th Cir.1983). In arriving at the appropriate amount, district courts must \"explain the findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected his (or her) decision.” Copper Liquor, Inc. v. Adolph Coors Company, 624 F.2d" }, { "docid": "7536233", "title": "", "text": "Smith”). Jackson, Walker requests an award of attorney’s fees in the amount of $15,653.50 plus costs. Kemp, Smith requests an award with costs total-ling $5,343.50 plus costs. Although this Court shall Order payment of Court costs by Defendants, the amount of such costs is a proper question for the Clerk of the Court and same shall not be considered herein. The Johnson standard has been further refined by the Fifth Circuit’s adoption of the “lodestar” method of calculating attorneys’ fees. See Graves v. Barnes, 700 F.2d 220, 222 (5th Cir.1983). “The lodestar is equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work. The lodestar is then adjusted to reflect other factors such as the contingent nature of the suit and the quality of the representation.” It is well established this Court is empowered to exercise its informal discretion in awarding attorney’s fees. Greenhaw v. Lubbock County Beverage Association, 721 F.2d 1019 (5th Cir.1983); Graves v. Barnes, 700 F.2d 220 (5th Cir.1983). In arriving at the appropriate amount, district courts “must explain the findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected his (or her) decision.” Copper Liquor, Inc. v. Adolph Coors Company, 624 F.2d 575, 581 (5th Cir.1982) [quoting: Matter of First Colonial Corp. of America, 544 F.2d 1291, 1300 (5th Cir.1978), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1978)]. Although all twelve factors must be considered, the Court will pay “special heed to Johnson criteria numbers (1) the time and labor involved; (5) the customary fee; (8) the amount involved and the result obtained; and (9) the experience, reputation and ability of counsel.” Copper Liquor, 624 F.2d at 583. THE TIME AND LABOR REQUIRED In determining the reasonableness of attorney’s fees, the necessary starting point is to assess the amount of time spent by counsel on the case. Johnson, 488 F.2d at 717. In addition to a time sheet affidavit submitted by counsel, the Court should weigh the hours claimed by" }, { "docid": "6974479", "title": "", "text": "Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974). The court gave no indication of how many hours it believed were reasonably expended in representing Marchelos, nor any hint of what it believed to be a reasonable hourly fee for counsel’s services. It gave no intimation why it denied reimbursement of expenses. The Supreme Court emphasized the importance of clear explanation of the calculation of attorneys’ fees in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The Court specifically urged articulation of the number of hours found to have been reasonably expended and the reasonable rate used as multiplier. When efforts have succeeded on some issues but not on others, “[t]he result is what matters.” Id. 103 S.Ct. at 1940. The overall level of success is paramount in determining the reasonableness of time expended, not simply the proportion of asserted claims won to asserted claims lost. This court has repeatedly and consistently vacated fee awards that are as vaguely explained as this one. We have held that district courts must do more than recite the twelve Johnson factors and announce a fee. In Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 582-83 (5th Cir. 1980), we gave the district court a specific framework of analysis it should follow in applying the Johnson factors. The purpose of that analysis is to make certain that the basis of the district court’s award is expressed, so that meaningful appellate review is possible. Accordingly, we vacate the award of fees and remand for reconsideration and proper findings. VI. On cross-appeal the defendants raise two additional issues. The first is a contention that the trial court did not give the defendants adequate time to present their defense. The second is an argument that the district court improperly granted an injunction prohibiting The College and “its officers, agents and employees from retaliating or discriminating against the Plaintiffs or any other employees due to their membership or association with ... [PACE] or any other lawful association of its employees.” The district court consistently applied pressure on both" }, { "docid": "16500775", "title": "", "text": "are exceptional able attorneys” (Johnson 9). Id. at 262. Nonetheless, he declined to adjust the lodestar upward. The Loyalists argue that this misapplication of the Johnson factors was an abuse of discretion and necessitates recomputation of the attorneys’ fee award. We disagree. Unlike the Loyalists, we read the district court’s opinion as taking those Johnson factors into account. While it appears that they were considered in the initial computation of the lodestar rather than as potential adjustments to this figure, they were not overlooked. Rather, the district court’s exhaustive treatment of those factors followed by its explanation that “the lodestar figure is the appropriate amount of attorneys’ fees” indicates that the contingent nature of the case, its importance, the time demands that it made, and the skill of the Loyalists’ attorneys were incorporated into the $95,235.48 award. We see no abuse of discretion. As we have said, “[A] court need not in determining the multiplier consider some factor already included in the calculation of the lodestar.” Graves v. Barnes, 700 F.2d 220, 224 (5th Cir.1983). We note that our circuit’s method, which we have summarized above, is generally to apply those Johnson factors after the lodestar has been calculated. We have also stated that trial judges should articulate fully the reasons for their awards, including an indication of how the twelve Johnson factors affected the decision. See Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d at 1092; Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581, 584 (5th Cir.1980). As we have said, “What we require is not a meaningless exercise in parroting and answering of Johnson’s twelve criteria, but some assurance that the court has arrived at a just compensation based on appropriate standards.” Id. at 581 (quoting Davis v. Fletcher, 598 F.2d 469, 470-71 (5th Cir. 1979)). The district court’s analysis did deviate slightly from these guidelines. While emphasizing that the Copper Liquor approach is preferred, we simply point out that we find no abuse of discretion here. Turning to the substance of the award, we agree with the Loyalists that it appears to be" }, { "docid": "17667419", "title": "", "text": "but related contentions. This does not mean that they may be compensated for unrelated claims pursued in this litigation. Thus, on remand, the District Court should carefully scrutinize counsel’s time records to ensure that only those hours expended on this Title VII litigation are recovered. . We express no view on the matters discussed in notes 4 and 7 supra which are not within our Article III obligation and need not be JOHNSON, Circuit Judge, concurring in part and dissenting in part. I differ only with the majority’s resolution of the issue of attorneys’ fees. As I read its opinion, the majority has three chief complaints about how the district court treated the application for attorneys’ fees. First, it complains that the district court appears not to have scrutinized the application for evidence of duplication of effort and for work, not legal in nature, but rather clerical. These are considerations noted under the first of the factors or guidelines set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir.1974) (emphasis in original): “The time and labor required.” It is true that our cases direct that, “[i]n computing reasonable attorneys’ fees, the district judge must ‘explain the findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected his decision.’ ” Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581 (5th Cir.1980) (quoting In re First Colonial Corp. of America, 544 F.2d 1291, 1300 (5th Cir.), cert. denied, 431 U.S. 904 (1977)). Further, we have said that a district judge, having decided that some Johnson factors were “not of great significance,” “should have expressly stated this in his conclusions of law.” Id. at 584 (emphasis supplied). The Copper Liquor opinion’s advisory language notwithstanding, other cases show that if there is “some assurance that the court has arrived at a just compensation based upon appropriate standards ..., it will not always be necessary for a district court to address each of the twelve [Johnson ] factors in explaining the considerations affecting its decision.” Davis" }, { "docid": "7787568", "title": "", "text": "nature and length of the professional relationship with the client; and (12) awards in similar cases. The Johnson standard has been further refined by the Fifth Circuit’s adoption of the \"lodestar” method of calculating attorneys’ fees. See Graves v. Barnes, 700 F.2d 220, 222 (5th Cir.1983). “The lodestar is equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work. The lodestar is then adjusted to reflect other factors such as the contingent nature of the suit and the quality of the representation.” It is well established that the Court is empowered to exercise its informal discretion in awarding attorneys’ fees. Greenhaw v. Lubbock County Beverage Association, 721 F.2d 1019 (5th Cir.1983); Graves v. Barnes, 700 F.2d 220 (5th Cir.1983). In arriving at the appropriate amount, district courts must \"explain the findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected his (or her) decision.” Copper Liquor, Inc. v. Adolph Coors Company, 624 F.2d 575, 581 (5th Cir.1982), quoting Matter of First Colonial Corp. of America, 544 F.2d 1291, 1300 (5th Cir.1978), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977). . If Defendants’ counsel is willing to present detailed time records to the Court corresponding Defendants’ counsel’s time spent in legal and factual investigation to Plaintiffs’ complaint, they are not prevented from doing so. Such a presentation may be revealing not only on the issue of proportion of time spent on the various allegations contained in Plaintiffs’ complaint but also on the issue of the very amount of time spent on the entire defense of the case. . See footnote 4 of Defendants’ Motion to Compel and For Enlargement of time. . Counsel are directed to page 18 et seq. of Defendants’ Motion to Compel." }, { "docid": "22439257", "title": "", "text": "to that of the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The Fifth Circuit recently reexamined and reaffirmed the Johnson guidelines in Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581-84 (5th Cir. 1980). The court also noted that “[the Johnson test, ... is similar to the Third Circuit’s ‘lodestar’ method of computing attorneys’ fees.” Copper Liquor, 624 F.2d at 583 n.15, citing Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3rd Cir. 1973), after remand, 540 F.2d 102 (3rd Cir. 1976). . Since Illinois did not request compensation for these miscellaneous legal efforts, we need not decide whether under other circumstances compensation for this work would be appropriate. . See note 5 supra. . Defendants argue that any recovery of attorneys’ fees in excess of the single damages awarded is improper. Although several opinions suggest that a major factor in assessing attorneys’ fees is the relationship between the fees and the damages recovered, see, e. g., Milwaukee Towne Corp., 190 F.2d at 570, the more prevalent and better reasoned analysis rejects any strict limitation as to what constitutes “reasonable attorneys’ fees.” See Coop v. City of South Bend, 635 F.2d 652, 655 (7th Cir. 1980) (within discretion of court to award attorneys’ fees in excess of damages); Copper Liquor, 624 F.2d at 584 (“a modest damage award should not control an attorneys’ fee award”) (footnote omitted); Morning Pioneer, Inc. v. Bismarck Tribune Co., 493 F.2d 383, 390 (8th Cir.), cert. denied, 419 U.S. 836, 95 S.Ct. 64, 42 L.Ed.2d 63 (1974) (not an abuse of discretion to award attorneys’ fees in excess of damages); and Locklin v. Day-Glo Color Corp., 378 F.Supp. at 427-28 (where damages are relatively small, it is permissible to award fees in excess of single damages). Thus, an award of attorneys’ fees in excess of single damages is permissible, but courts may consider the relationship between attorneys’ fees and the damages awarded in determining whether an adjustment to a fee award is appropriate. See International Travel Arrangers, Inc." }, { "docid": "12738899", "title": "", "text": "And if the latter, were not some of the Johnson factors in danger of being double counted? The Fifth Circuit issued a decision not long after its ruling in Copper Liquor, suggesting that “our circuit’s method ... is generally to apply the Johnson factors after the lodestar has been calculated.” Riddell v. National Democratic Party, 712 F.2d 165, 170 (5th Cir.1983)(emphasis added). Riddell was decided immediately following the Supreme Court’s ruling in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The Supreme Court had there explained that “[t]he product of the reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of ‘results obtained.’” Id. at 434, 103 S.Ct. 1933 (emphasis added). The Supreme Court also noted that many of the Johnson factors are already subsumed within the initial calculation of the “lodestar.” See id. at 434 n. 9, 103 S.Ct. 1933. The apparent inconsistency between the procedure described by the Supreme Court and the process employed in the Fifth Circuit (as described in Riddell) was at least elided in Graves (the voting rights case), in which the court held that “a court need not in determining the [adjustment] consider some factor already included in the calculation of the lodestar.” Graves, 700 F.2d at 224. Yet, just two years later, the Fifth Circuit, after, acknowledging the conflicting standards, reiterated that “[t]he important point is that the district court ‘explain the findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected his decision.’ ” Sims v. Jefferson Downs Racing Assoc., 778 F.2d 1068, 1084 (5th Cir.1985) (citing Copper Liquor II, 624 F.2d at 581) (other citations omitted). Thus, the Fifth Circuit came full circle in just two years, first stating that some of the Johnson factors were subsumed in the lodestar, then that none of the Johnson factors were to be applied unless the court wanted to adjust the lodestar, and, finally" }, { "docid": "12698145", "title": "", "text": "the reasons stated below, we modify the judgment, and affirm as modified. II. Discussion: Before proceeding to analyze the propriety of the fee award, however, we must first dispose of a threshold issue raised by the State. Relying on Supreme Court of Virginia v. Consumer’s Union, 446 U.S. 719,100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), the State argues that since the defendants in this case, who were enforcement officials, merely followed the mandate laid down by the Texas legislature, they are entitled to absolute legislative immunity from suit. This argument misconstrues Consumer’s Union, in which the Court stated that “[f]ee awards against enforcement officials are run-of-the-mill occurrences, even though, on occasion, had a state legislature acted or reacted in a different or more timely manner, there would have been no need for a lawsuit or for an injunction.” 446 U.S. at 739, 100 S.Ct. at 1978. See also Fernandez v. Limmer, 663 F.2d 619, 637 (5th Cir.1981), cert. dismissed,-U.S.-, 103 S.Ct. 5, 73 L.Ed.2d 1395 (1982). Moreover, this Court has recently awarded attorney’s fees to the prevailing plaintiffs in a voting rights case. See Flowers v. Wiley, 675 F.2d 704 (5th Cir.1982). The State next contends that the district court abused its discretion by awarding excessive attorney’s fees to plaintiffs. The standard in this circuit governing the computation of attorney’s fees is set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974) and its progeny. In awarding attorney’s fees, the district court is empowered to exercise its informed discretion, and a reviewing court will not disturb the judgment of the district court absent a showing of an abuse of discretion. Lindy Bros. Builders v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 166 (3d Cir.1973), affirmed, 540 F.2d 102 (3d Cir.1976) (en banc). In arriving at an appropriate amount, the district court is required to “explain the findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected [its] decision.” Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581 (5th Cir.1980) (Copper" }, { "docid": "22928053", "title": "", "text": "$21,778.93, making the total award of fees and costs $266,466.43. Both parties promptly appealed, Coors seeking a reduction in the amount awarded and Letcher seeking an increase. I. ATTORNEYS’ FEES Judge Wisdom’s thoughtful opinion in Copper Liquor II summarized the appropriate procedure for determining a reasonable attorneys’ fee in the Fifth Circuit. We borrow from and condense that discussion here. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), listed twelve factors that must be considered by a district court in this circuit in awarding a statutorily authorized attorneys’ fee: (1) The time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee [for similar work in the community], (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. The district judge is required to “ ‘explain the findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected his decision.’ ” Copper Liquor II, 624 F.2d at 581 (quoting Matter of First Colonial Corp. of America, 544 F.2d 1291, 1299-1300 (5th Cir. 1977)). In Copper Liquor II, we stated that, although the “district court’s findings of fact are well developed[,] the order ... does not articulate the reasons for awarding attorneys’ fees of $45,000.” Id. at 582. Of the twelve Johnson factors, Judge Wisdom stated that recent Fifth Circuit decisions suggested that four of the factors deserve “special heed”: “(1) the time and labor involved, (5) the customary fee, (8) the amount involved and the results obtained, and (9) the experience, reputation, and ability of counsel.” Id. at 583. These factors should be considered in" }, { "docid": "18780868", "title": "", "text": "to the party prevailing on a copyright claim. Although attorney’s fees are awarded in the trial court’s discretion, they are the rule rather than the exception and should be awarded routinely. Engel v. Teleprompter Corp., 732 F.2d 1238, 1241 (5th Cir.1984). In Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), there are listed twelve factors which must be considered by a district court in awarding statutorily authorized attorney’s fees: (1) The time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee [for similar work in the community], (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. The district court acknowledged the existence of each of these twelve criteria in its order awarding attorney’s fees. The award, however, appears to have been based on a single factor: the amount involved and the results obtained. In Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581 (5th Cir.1980) (quoting Matter of First Colonial Corp. of America, 544 F.2d 1291, 1299-1300 (5th Cir.1977)), this court held that a district judge is required to “ ‘explain the findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected his decision.’ ” The judge, moreover, must pay “special heed” to four of the twelve factors: (1) the time and labor required, (5) the customary fee, (8) the amount involved and the results obtained, and (9) the experience, reputation, and ability of the attorneys. Id. at 583. Although Micromanipulator’s “results” are one of four primary factors to be considered, it is clear that the recovery of only nominal" }, { "docid": "910985", "title": "", "text": "the attorney’s fees award. The plaintiffs now appeal the district court’s original order granting attorney’s fees in the amount of $1,000 as altered and amended by the court’s second order, casting the defendants with court costs. The plaintiffs, appealing the attorney’s fees awards as inadequate, ask this court to reverse on the basis that the district court failed to articulate the effect that the Johnson criteria had on its attorney’s fees award determination. Appellate Review of the District Court Award: Johnson-Factor Articulation In determining the reasonableness of an attorney’s fee award, we are limited to considering whether the district court abused its discretion. Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581 (5th Cir. 1980); Norwood v. Harrison, 581 F.2d 518, 520 (5th Cir. 1978); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974). This determination rests upon a careful review of the basis upon which the district court made its award, including its consideration of each criteria set forth in Johnson, supra, at 417-419. On numerous occasions, panels within this circuit have required that the district court articulate how the Johnson factors affected its attorney’s fee award, and have remanded the case for such an explication to facilitate appellate review. See Van Ooteghem v. Gray, 628 F.2d 488 (5th Cir. 1980); Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575 (5th Cir. 1980); King v. McCord, 621 F.2d 205 (5th Cir. 1980); Knighton v. Watkins, 616 F.2d 795 (5th Cir. 1980); Gay v. Board of Trustees of San Jacinto College, 608 F.2d 127 (5th Cir. 1979); Davis v. Fletcher, 598 F.2d 469 (5th Cir. 1979); Sweeney v. Vindale Corp., 574 F.2d 1296 (5th Cir. 1978); Fain v. Caddo Parish Police Jury, 564 F.2d 707 (5th Cir. 1977); Matter of First Colonial Corp. of America, 544 F.2d 1291 (5th Cir. 1977), cert. denied 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977); Miller v. Mackey Intern’l Inc., 515 F.2d 241 (5th Cir. 1975); Mims v. Wilson, 514 F.2d 106 (5th Cir. 1975); Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437 (5th" }, { "docid": "12698146", "title": "", "text": "the prevailing plaintiffs in a voting rights case. See Flowers v. Wiley, 675 F.2d 704 (5th Cir.1982). The State next contends that the district court abused its discretion by awarding excessive attorney’s fees to plaintiffs. The standard in this circuit governing the computation of attorney’s fees is set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974) and its progeny. In awarding attorney’s fees, the district court is empowered to exercise its informed discretion, and a reviewing court will not disturb the judgment of the district court absent a showing of an abuse of discretion. Lindy Bros. Builders v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 166 (3d Cir.1973), affirmed, 540 F.2d 102 (3d Cir.1976) (en banc). In arriving at an appropriate amount, the district court is required to “explain the findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected [its] decision.” Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581 (5th Cir.1980) (Copper Liquor II). Finally, the district court’s factual findings will not be disturbed unless they are clearly erroneous. In re First Colonial Corp. of America, 544 F.2d 1291, 1298 (5th Cir.1977), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977). The Fifth Circuit recently adopted the “lodestar” method of calculating attorney’s fees relied upon by the Second, Third, and District of Columbia Circuits. See Copper Liquor II, 624 F.2d at 583 n. 15; Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1092-93 & n. 11 (5th Cir.1982) (Copper Liquor III). Under this refinement of the Johnson test, “[t]he ‘lodestar’ is equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work. The lodestar is then adjusted to reflect other factors such as the contingent nature of suit and the quality of the representation.” Copper Liquor III, 684 F.2d at 1093 (citing Copeland, 641 F.2d at 891-94). In fixing the amount of the fee award, the district court relied on prevailing hourly rates," } ]

[ { "docid": "3600341", "title": "", "text": "estop a party from contesting in a later civil suit any element necessarily established in the criminal trial.”). To determine the applicability of collateral estoppel in this case, we apply the standard which the Supreme Court set forth in Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). The Court established that determining when to apply collateral estoppel requires three inquiries: (1) whether the issues presented are in substance the same in the present and prior litigation; (2) whether controlling facts or legal principles have changed significantly since the prior judgment; and (3) whether “other special circumstances warrant an exception to the normal rules of preclusion.” Id. at 155, 99 S.Ct. at 975. The Court further stated that “a fact, question or right distinctly adjudged in the original action cannot be disputed in a subsequent action, even though the determination was reached upon an erroneous view or by an erroneous application of the law.” Id. at 162, 99 S.Ct. at 978 (quoting United States v. Moser, 266 U.S. 236, 242, 45 S.Ct. 66, 67, 69 L.Ed. 262 (1924)). A Identity of Issues First, it is clear to us that the issues in Richey’s criminal and civil actions were substantially identical — in particular, that both actions involved the question whether Richey acted “willfully.” The statute under which Richey was convicted on the substantive criminal counts provides that any person commits a felony who “[w]illfully aids or assists in ... the preparation ... of a return ... which is fraudulent or is false as to any material matter.... ” 26 U.S.C. § 7206(2). At trial, the government proved beyond a reasonable doubt that Rich-ey willfully aided or assisted in preparing tax returns that were both fraudulent and false. See Order Reserving Motion for Summary Judgment, ER at 22. Clearly, the issue of Richey’s willfulness in preparing the returns was “definitely and actually litigated and adjudged.” Montana, 440 U.S. at 157, 99 S.Ct. at 975 (internal quotation omitted). In Richey’s civil action for refund and abatement of penalties assessed under 26 U.S.C. § 6694(b), the government had" } ]

[ { "docid": "10429546", "title": "", "text": "issues of material fact with respect to those issues. However, if collateral estoppel does not bar the relitigation of any issue, we must determine whether any genuine issues of material fact remain. II. THE COLLATERAL ESTOPPEL EFFECT OF OUR UNPUBLISHED DECISION IN AIA-BIT The district court concluded that the Trustees’ entire claim against AA & C and John Hancock was barred by the collateral estoppel effect of our decision in AIA-BIT. Although we agree that relitigation of the RSR funds’ status as ERISA funds and AA & C and John Hancock’s status as ERISA fiduciaries is barred by AIA-BIT, we conclude that the issue of the CELSOC Plan’s status as an ERISA plan and the Trustees prohibited transaction claim is not barred by AIA-BIT. “ ‘Collateral estoppel, or issue preclusion, bars the relitigation of issues actually adjudicated in previous litigation between the same parties.’ ” Kamilche Co. v. United States, 53 F.3d 1059, 1062 (9th Cir.1995) (quoting Clark v. Bear Stearns & Co., 966 F.2d 1318, 1320 (9th Cir.1992)), amended on rehearing, 75 F.3d 1391 (9th Cir.1996). “[T]he doctrine of collateral estoppel can apply to preclude relitigation of both issues of law and issues of fact if those issues were conclusively determined in a prior action.” United States v. Stauffer Chem. Co., 464 U.S. 165, 170-71, 104 S.Ct. 575, 578, 78 L.Ed.2d 388 (1984). Collateral estoppel applies not only against actual parties to prior litigation, but also against a party that is in privity to a party in previous litigation. Shaw v. Hahn, 56 F.3d 1128, 1131 (9th Cir.), cert. denied — U.S. -, 116 S.Ct. 418, 133 L.Ed.2d 336 (1995). The Trustees do not dispute that the parties in this case were parties in AIA-BIT, or in privity with them. Historically, however, courts have been cautious when applying collateral estoppel where the parties in the proceeding in which the application of collateral estoppel is sought were not adversaries in the litigation that resulted in the decision that has alleged collateral estoppel effect. See, e.g., 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure" }, { "docid": "10429555", "title": "", "text": "and fair litigation” of the issue of the RSR funds’ and John Hancock and AA & C’s status. The Trustees argue that the collateral estoppel effect of the AIA-BIT decision regarding RSR funds and AA & C’s John Hancock’s status as a fiduciary is nullified by the Supreme Court’s decision in Harris Trust. In Harris Trust, the Court held that funds deposited with an insurance company by a trust to secure retirement benefits, which were initially commingled with the general funds of the insurance company but could be converted into a guaranteed stream of benefits for retirees during the life of the contract, were ERISA plan assets, which required John Hancock’s treatment of those funds to meet fiduciary standards. 510 U.S. at 101-07,114 S.Ct. at 527-29. Even assuming this holding would compel a different result in AIA-BIT were that case decided today, the mere fact that the AIA-BIT case may have been erroneous when decided is not sufficient to preclude the collateral estop-pel effect of AIA-BIT in the present case. In Richey v. United States Internal Revenue Service, 9 F.3d 1407 (9th Cir.1993), we indicated that the possible application of the limited exceptions to the doctrine of collateral estoppel requires three inquiries: “(1) whether the issues presented are in substance the same in the present and prior litigation; (2) whether controlling facts or legal principles have changed significantly since the prior judgment; and (3) whether ‘other special circumstances warrant an exception to the normal rules of preclusion.’-” Id. at 1410 (quoting Montana v. United States, 440 U.S. 147, 155, 99 S.Ct. 970, 975, 59 L.Ed.2d 210 (1979)). However, the Rich-ey court noted that “a fact, question or right distinctly adjudged in the original action cannot be disputed in a subsequent action, even though the determination was reached upon an erroneous view or by an erroneous application of the law.” Id. (quoting Montana, 440 U.S. at 162, 99 S.Ct. at 978 (quoting United States v. Moser, 266 U.S. 236, 242, 45 S.Ct. 66, 67, 69 L.Ed. 262 (1924))). See also Segal v. AT & T, 606 F.2d 842, 845 (9th Cir.1979)" }, { "docid": "10429545", "title": "", "text": "the standard applicable to a motion for summary judgment.’ ” Id. (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983)). Here, the existence of an ERISA plan and the alleged occurrence of breaches of fiduciary duty and prohibited transactions are factual determinations necessary to establish both the merits of the Trustees’ claims and ERISA jurisdiction. Thus, application of the summary judgment standard is proper. We review a district court’s grant of summary judgment de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied — U.S. -, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). ‘We must determine whether the evidence, viewed in a light most favorable to the non-moving party, presents any genuine issues of material fact and whether the district court correctly applied the law.” Id. We review the availability of collateral estoppel de novo. Pardo v. Olson & Sons, Inc., 40 F.3d 1063, 1066 (9th Cir.1994). To the extent that the collateral estoppel effect of AIA-BIT bars the relitigation of certain issues, there will be no genuine issues of material fact with respect to those issues. However, if collateral estoppel does not bar the relitigation of any issue, we must determine whether any genuine issues of material fact remain. II. THE COLLATERAL ESTOPPEL EFFECT OF OUR UNPUBLISHED DECISION IN AIA-BIT The district court concluded that the Trustees’ entire claim against AA & C and John Hancock was barred by the collateral estoppel effect of our decision in AIA-BIT. Although we agree that relitigation of the RSR funds’ status as ERISA funds and AA & C and John Hancock’s status as ERISA fiduciaries is barred by AIA-BIT, we conclude that the issue of the CELSOC Plan’s status as an ERISA plan and the Trustees prohibited transaction claim is not barred by AIA-BIT. “ ‘Collateral estoppel, or issue preclusion, bars the relitigation of issues actually adjudicated in previous litigation between the same parties.’ ” Kamilche Co. v. United States, 53 F.3d 1059, 1062 (9th Cir.1995) (quoting Clark v. Bear Stearns & Co., 966 F.2d 1318, 1320 (9th Cir.1992)), amended on rehearing, 75 F.3d 1391" }, { "docid": "10429557", "title": "", "text": "(noting exception to collateral es-toppel where “[t]he issue is one of law and ... a new determination is warranted in order to take account of a intervening change in the applicable legal context” and noting that “[i]ssue preclusion has never been applied to issues of law with the same rigor as to issues of fact”) (quoting current Restatement (Second) of Judgments, § 28(2) (1982)) (emphasis added). In AIA-BIT, we concluded that the organization of the RSR among the DPGIP participants was not an ERISA plan. 1988 WL 91140 at **3. Even assuming that an employee welfare benefit plan existed, we concluded that “the RSR was not a fund asset,” and that John Hancock and the other participants in the RSR agreement were not ERISA fiduciaries. Id. at **4. Whether a plan is an ERISA plan is a finding of fact. Moideen v. Gillespie, 55 F.3d 1478, 1481 (9th Cir.1995); Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266 (9th Cir.1991); Kanne v. Connecticut Gen. Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989). Likewise, a conclusion that someone is not an ERISA fiduciary is essentially a factual conclusion. See Thomas, Head & Greisen Employees Trust v. Buster, 24 F.3d 1114, 1116 (9th Cir.1994) (holding that the district court’s finding that an individual was an ERISA fiduciary was “essentially” a factual issue, which could not be set aside unless clearly erroneous), cert. denied, — U.S. —, 115 S.Ct. 935, 130 L.Ed.2d 881 (1995). Thus, a change in the'law does not justify denying collateral estoppel effect to our factual conclusions in AIA-BIT that the RSR arrangement was not an ERISA plan, that the RSR was not a fund asset, and that AA & C and John Hancock were not ERISA fiduciaries. Even if any of the conclusions in AIA-BIT were characterized as legal conclusions, those legal conclusions could only be reexamined if there had been a “ ‘significant change in the legal climate’ ” since AIA-BIT. Kamilche 53 F.3d at 1063 n. 3; see also Montana, 440 U.S. at" }, { "docid": "10429542", "title": "", "text": "funds, and the degree of Hancock’s discretionary control over the RSR both during the life of the DPGIP and after its dissolution. If this court’s independent determination of the matter were required, an evidentiary hearing ... might be warranted. The district court concluded, however, that the collateral estoppel effect of AIA-BIT required the action to be dismissed for lack of subject matter jurisdiction. While noting a lack of clarity in our AIA-BIT memorandum opinion, the district court concluded that we had determined in AIA-BIT “that the RSR was not a[n ERISA] fund asset.” See 1988 WL 91140 at **3. Because the CELSOC Trust was in privity with the Cal Council Trust, and because the district court concluded that AIA-BIT was a decision on the merits, the district court determined that the AIA-BIT decision had preclusive effect on the Trustees claim in this matter. The district court also concluded that the Supreme Court’s decision in John Hancock Mutual Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 114 S.Ct. 517, 126 L.Ed.2d 524 (1993) (hereinafter “Harris Trust”), did not undercut our factual determination in AIA-BIT that the RSR funds at issue were premiums, and not ERISA funds held by the insurer anticipating the future purchase of additional insurance policies. John Hancock’s motion to dismiss was granted. DISCUSSION The Trustees argue that the district court erred by determining that AIA-BIT collaterally estopped it from relitigating any of the factual issues essential to its claim, and alternatively that the Supreme Court’s decision in Harris Trust effectively overruled AIA-BIT ’s conclusions that the RSR funds were not ERISA funds. The Trustees also argue that jurisdiction of the district court can properly be premised solely on the CELSOC Health and Life Insurance Plan’s status as an ERISA plan, and that notwithstanding the RSR funds’ status as an asset of an ERISA plan, the Trustees, as fiduciaries of an ERISA plan, can bring a claim against the defendants, as “parties in interest,” under 29 U.S.C. § 1002(14), for engaging in prohibited transactions in violation of 29 U.S.C. § 1106. John Hancock argues that" }, { "docid": "10429560", "title": "", "text": "have made no showing that Harris Trust constituted a change in the law regarding which funds in the hands of insurance companies are ERISA funds, and we have found no authority to indicate that it constituted such a change. A reading of AIA-BIT alone is not sufficient in this case to demonstrate that the law in this circuit was different prior to Harris Trust. Assuming arguendo that Harris Trust indicates that we erroneously applied the law in AIA-BIT, that alone would not provide a ground for relief from collateral estoppel. We concludé that Harris Trust does not nullify the collateral estoppel effect of our holding in AIA-BIT that the RSR funds are not ERISA funds and John Hancock and AA & C are not ERISA fiduciaries. Though the Trustees’ breach of fiduciary duty claim against John Hancock and AA & C is barred by collateral estoppel, the Trustees raise two additional arguments in support of federal jurisdiction based on ERISA: (1) that the CELSOC Health Plan is an “employee welfare benefit plan” that is maintained by an employee organization which is not subject to any of the exceptions for qualification as an ERISA plan, thus providing a basis for ERISA jurisdiction; and (2) that it can bring a claim against John Hancock and AA & C for “prohibited transactions,” pursuant to 29 U.S.C. § 1106, regardless of the defendants’ status as fiduciaries or the RSR funds’ status as the asset of an ERISA plan. We conclude that the litigation of these issues is not barred by AIA-BIT. We recognize that there are several confusing aspects to our AIA-BIT decision, and the discussion of AIA-BIT’s status as an ERISA plan is among the most confusing. In the introduction to the discussion session, the AIA-BIT opinion states explicitly, “We hold that the AIA-BIT was not an employee welfare benefit plan because it was really a multiple employer trust....” 1988 WL 91140 at **1. The section specifically discussing whether there was an employee welfare benefit plan subject to ERISA jurisdiction was prefaced by the question, “Was AIA-BIT an Employee Welfare Benefit Plan?” Id." }, { "docid": "10429561", "title": "", "text": "by an employee organization which is not subject to any of the exceptions for qualification as an ERISA plan, thus providing a basis for ERISA jurisdiction; and (2) that it can bring a claim against John Hancock and AA & C for “prohibited transactions,” pursuant to 29 U.S.C. § 1106, regardless of the defendants’ status as fiduciaries or the RSR funds’ status as the asset of an ERISA plan. We conclude that the litigation of these issues is not barred by AIA-BIT. We recognize that there are several confusing aspects to our AIA-BIT decision, and the discussion of AIA-BIT’s status as an ERISA plan is among the most confusing. In the introduction to the discussion session, the AIA-BIT opinion states explicitly, “We hold that the AIA-BIT was not an employee welfare benefit plan because it was really a multiple employer trust....” 1988 WL 91140 at **1. The section specifically discussing whether there was an employee welfare benefit plan subject to ERISA jurisdiction was prefaced by the question, “Was AIA-BIT an Employee Welfare Benefit Plan?” Id. The panel determined that “AIA-BIT adequately pled enough facts in its complaint to withstand a dismissal on the question of whether it was a bona fide employers association for the purpose of ERISA.” Id. at **2. Despite this conclusion, however, the AIA-BIT panel then switched its analysis to the parties to the RSR Agreement, and based on the determination that the AA & C “held complete and exclusive authority over the disposition of funds in the RSR” under the RSR agreement, it concluded that the RSR arrangement was a multiple employer trust, and “that the DPGIP was not an employee welfare benefit plan subject to ERISA jurisdiction.” Id. at **3. Because John Hancock, AA & C, and the Cal Council were all codefendants in AIA-BIT, we must be particularly cautious in giving collateral estoppel effect to our decision in AIA-BIT. We believe that because of the apparent confusion in our AIA-BIT disposition that there is doubt about whether AIA-BIT’s status as an ERISA plan was actually litigated, and for this reason alone, statements about AIA-BIT’s" }, { "docid": "17280919", "title": "", "text": "F.2d at 450. Further, unlike other civil rights statutes, Title VII clearly provides for a de novo hearing in federal court. Chandler v. Roudebush, 425 U.S. 840, 844-45, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). The language of Title VII does not indicate Congress intended to limit this provision by giving res judicata or collateral estoppel effect to state proceedings and we would have reservations in judicially creating such a limitation. See Benneci v. Department of Labor, 388 F.Supp. 1080, 1082 (S.D.N.Y.1975). . Appellants urge Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) requires the application of collateral es-toppel to the Title VII action here. The Court in Montana stated the application of collateral estoppel in the case before it depended on three factors, (1) whether the issues presented in the federal litigation are in substance the same as those resolved in the state court; (2) whether controlling facts or legal principles have changed significantly since the state court judgment; and (3) whether other special circumstances warrant an exception to the normal rules of preclusion. 440 U.S. at 155, 99 S.Ct. 970. For the reasons stated in our disposition of the res judicata and collateral estoppel issue, it is our view that Title VII has created a “special circumstance” which warrants an exception to the normal rules of preclusion. This is especially true where plaintiff did not seek state court review, but was forced to defend by appellants’ appeal. . It is conceded here that the employment practice is overtly discriminatory, and so violates Title VII unless there is a bfoq reasonably necessary to the normal operation of the particular enterprise. 42 U.S.C. § 2000e-2(e)(l). See note 3 supra. Other cases find a facially neutral employment practice to be discriminatory in practice. This type of employment practice is justified only if it meets a judicially created “business necessity” test. Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). We follow the analysis of the Supreme Court in Dothard in our examination of the bfoq issue, though realizing" }, { "docid": "10429559", "title": "", "text": "161, 99 S.Ct. at 977 (stating that collateral estoppel will apply “unless there have been major changes in the law”). “[I]t is only an intervening change in the law that defeats collateral estoppel—the correctness of a prior ruling, even if based upon erroneous application of the law, is irrelevant.” Richey, 9 F.3d at 1412 (intervening Supreme Court decision did not constitute a change in the law where it relied on settled principles and no claim was made that the Circuit had ever applied a contrary rule). The Supreme Court’s decision in Harris Trust was a matter of statutory interpretation. 510 U.S. at 93-99, 114 S.Ct. at 523-25. It did not discount any prior caselaw. While the parties in Hams Trust argued that the decision would conflict with an interpretation consistently adhered to by the Department of Labor, id. at 105-08, 114 S.Ct. at 529-30, the Supreme Court ultimately concluded that “the Department apparently had no firm position” regarding the interpretation of the ERISA provision in question. Id. at 109-11, 114 S.Ct. at 531. The Trustees have made no showing that Harris Trust constituted a change in the law regarding which funds in the hands of insurance companies are ERISA funds, and we have found no authority to indicate that it constituted such a change. A reading of AIA-BIT alone is not sufficient in this case to demonstrate that the law in this circuit was different prior to Harris Trust. Assuming arguendo that Harris Trust indicates that we erroneously applied the law in AIA-BIT, that alone would not provide a ground for relief from collateral estoppel. We concludé that Harris Trust does not nullify the collateral estoppel effect of our holding in AIA-BIT that the RSR funds are not ERISA funds and John Hancock and AA & C are not ERISA fiduciaries. Though the Trustees’ breach of fiduciary duty claim against John Hancock and AA & C is barred by collateral estoppel, the Trustees raise two additional arguments in support of federal jurisdiction based on ERISA: (1) that the CELSOC Health Plan is an “employee welfare benefit plan” that is maintained" }, { "docid": "10429540", "title": "", "text": "John Hancock moved to dismiss the Trustee’s complaint for lack of jurisdiction, arguing that the CELSOC Plan and the CELSOC Trustees lacked standing to sue under ERISA, and that “the issue of subject matter jurisdiction with respect to the claims presented in [the Trustee’s] complaint has already been litigated and found to be lacking” in the Ninth Circuit’s unpublished 1988 opinion of AIA-BIT. In AIA-BIT, one of the DPGIP participant trusts sued John Hancock, AA & C, and the trustees of the other DPGIP participant trusts seeking the return of more than $2,000,000 from its RSR account, which the parties to the RSR Agreement alleged AIA-BIT had forfeited by voluntarily withdrawing from the RSR Agreement without giving sufficient notice of its intention to withdraw from the agreement. Pursuant to a motion to dismiss brought by the trustees of the other DPGIP participant trusts, including the trustees of the predecessor trusts to CELSOC, and joined in by John Hancock and AA & C, the district court in AIA-BIT dismissed for lack of diversity and lack of a federal question. On appeal, we affirmed, ruling “that the DPGIP was not an employee welfare benefit plan subject to ERISA jurisdiction,” AIA-BIT, 1988 WL 91140 at **3, and “that the defendants were not fiduciaries, for the purposes of ERISA jurisdiction under 29 U.S.C. § 1132(e)(1).” Id. at **4. The defendants were not ERISA fiduciaries because the RSR funds were not ERISA funds, but rather “a slightly more complex variation of a rather common practice where an insurance company set premiums and then set up reserve accounts that allow the smoothing out of fluctuations over the long run.” Id. (quoting district court opinion). Finally, we concluded that the plaintiffs did not satisfy the jurisdictional requirements for a prohibited transactions claim because the RSR funds were not ERISA assets and the defendants were not ERISA fiduciaries. Id. at **4. Here, the district court noted several factual disputes that were potentially relevant to the Trustees’ ERISA theory: the intent of the contracting parties as to the nature and use of RSR funds, the actual management of those" }, { "docid": "10429552", "title": "", "text": "litigated: (1) is there a substantial overlap between the evidence or argument to be advanced in the second proceeding and that advanced in the first? (2) does the new evidence or argument involve the application of the same rule of law as that involved in the prior proceeding? (3) could pretrial preparation and discovery related to the matter presented in the first action reasonably be expected to have embraced the matter sought to be presented in the second? (4) how closely related are the claims involved in the two proceedings? Id. at 1062 (quoting Restatement (Second) of Judgments § 27 cmt. c (1982)). Applying the principles articulated in Kamilche, we conclude that the Trustees are barred from relitigating the RSR funds’ status as ERISA assets and John Hancock’s status as an ERISA fiduciary because those issues are identical to issues decided in AIA-BIT. In AIA-BIT we clearly ruled that, regardless of AIA-BIT’s status as an employee welfare benefit plan, “the RSR was not a fund asset” and that John Hancock, AA & C, and the other defendants were not ERISA fiduciaries with respect to those funds. 1988 WL 91140 at **4. In this case, we are presented with the same RSR agreement as that considered in AIA-BIT, and CELSOC bases its breach of fiduciary duty claim against John Hancock and AA & C on the RSR funds’ status as ERISA funds and John Hancock’s and AA & C’s status as ERISA fiduciaries. Thus, the issues of the RSR funds’ status as ERISA funds and AA & C and John Hancock’s status are identical to issues decided in AIA-BIT. The determination of an issue on a motion for judgment on the pleadings or a motion for summary judgment is sufficient to satisfy the “litigated” requirement for collateral estoppel. Restatement (Second) of Judgments § 27 cmt. d (1982); see also In re Zelis, 66 F.3d 205, 208 (9th Cir.1995) (giving collateral estoppel effect to issue decided in response to motion to dismiss). The district court correctly noted that our AIA-BIT decision made references to inadequate pleadings. See, e.g., 1988 WL 91140 at" }, { "docid": "10429558", "title": "", "text": "denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989). Likewise, a conclusion that someone is not an ERISA fiduciary is essentially a factual conclusion. See Thomas, Head & Greisen Employees Trust v. Buster, 24 F.3d 1114, 1116 (9th Cir.1994) (holding that the district court’s finding that an individual was an ERISA fiduciary was “essentially” a factual issue, which could not be set aside unless clearly erroneous), cert. denied, — U.S. —, 115 S.Ct. 935, 130 L.Ed.2d 881 (1995). Thus, a change in the'law does not justify denying collateral estoppel effect to our factual conclusions in AIA-BIT that the RSR arrangement was not an ERISA plan, that the RSR was not a fund asset, and that AA & C and John Hancock were not ERISA fiduciaries. Even if any of the conclusions in AIA-BIT were characterized as legal conclusions, those legal conclusions could only be reexamined if there had been a “ ‘significant change in the legal climate’ ” since AIA-BIT. Kamilche 53 F.3d at 1063 n. 3; see also Montana, 440 U.S. at 161, 99 S.Ct. at 977 (stating that collateral estoppel will apply “unless there have been major changes in the law”). “[I]t is only an intervening change in the law that defeats collateral estoppel—the correctness of a prior ruling, even if based upon erroneous application of the law, is irrelevant.” Richey, 9 F.3d at 1412 (intervening Supreme Court decision did not constitute a change in the law where it relied on settled principles and no claim was made that the Circuit had ever applied a contrary rule). The Supreme Court’s decision in Harris Trust was a matter of statutory interpretation. 510 U.S. at 93-99, 114 S.Ct. at 523-25. It did not discount any prior caselaw. While the parties in Hams Trust argued that the decision would conflict with an interpretation consistently adhered to by the Department of Labor, id. at 105-08, 114 S.Ct. at 529-30, the Supreme Court ultimately concluded that “the Department apparently had no firm position” regarding the interpretation of the ERISA provision in question. Id. at 109-11, 114 S.Ct. at 531. The Trustees" }, { "docid": "10429551", "title": "", "text": "in the second litigation must have been litigated and decided in the first case.’” Kamilche, 53 F.3d at 1062 (quoting Starker, 602 F.2d at 1344) (other citation omitted); see also Durkin v. Shea & Gould, 92 F.3d 1510, 1515-16 (9th Cir.1996) (collateral estoppel requires “a final judgment on the merits”). “Collateral estoppel is inappropriate if there is any doubt as to whether an issue was actually litigated in a prior proceeding.” Eureka Fed. Sav. & Loan Ass’n v. American Casualty Co. of Reading, Penn., 873 F.2d 229, 233 (9th Cir.1989); see also Durkin, 92 F.3d at 1515. “ ‘If the decision could have been rationally grounded upon an issue other than that which the defendant seeks to foreclose from ■consideration, collateral estoppel does not preclude relitigation of the asserted issue.’ ” Id. (quoting Davis & Cox v. Summa Corp., 751 F.2d 1507, 1518-19 (9th Cir.1985)). In Kamilche, we adopted four factors, articulated by the Restatement (Second) of Judgments, to be considered in determining whether the issue in a proceeding is identical to an issue previously litigated: (1) is there a substantial overlap between the evidence or argument to be advanced in the second proceeding and that advanced in the first? (2) does the new evidence or argument involve the application of the same rule of law as that involved in the prior proceeding? (3) could pretrial preparation and discovery related to the matter presented in the first action reasonably be expected to have embraced the matter sought to be presented in the second? (4) how closely related are the claims involved in the two proceedings? Id. at 1062 (quoting Restatement (Second) of Judgments § 27 cmt. c (1982)). Applying the principles articulated in Kamilche, we conclude that the Trustees are barred from relitigating the RSR funds’ status as ERISA assets and John Hancock’s status as an ERISA fiduciary because those issues are identical to issues decided in AIA-BIT. In AIA-BIT we clearly ruled that, regardless of AIA-BIT’s status as an employee welfare benefit plan, “the RSR was not a fund asset” and that John Hancock, AA & C, and the" }, { "docid": "10429553", "title": "", "text": "other defendants were not ERISA fiduciaries with respect to those funds. 1988 WL 91140 at **4. In this case, we are presented with the same RSR agreement as that considered in AIA-BIT, and CELSOC bases its breach of fiduciary duty claim against John Hancock and AA & C on the RSR funds’ status as ERISA funds and John Hancock’s and AA & C’s status as ERISA fiduciaries. Thus, the issues of the RSR funds’ status as ERISA funds and AA & C and John Hancock’s status are identical to issues decided in AIA-BIT. The determination of an issue on a motion for judgment on the pleadings or a motion for summary judgment is sufficient to satisfy the “litigated” requirement for collateral estoppel. Restatement (Second) of Judgments § 27 cmt. d (1982); see also In re Zelis, 66 F.3d 205, 208 (9th Cir.1995) (giving collateral estoppel effect to issue decided in response to motion to dismiss). The district court correctly noted that our AIA-BIT decision made references to inadequate pleadings. See, e.g., 1988 WL 91140 at **4. However, the district court also correctly concluded that because the jurisdictional inquiries and the merits of the ERISA claim were intertwined in AIA-BIT, as they are here, our inquiry in AIA-BIT went beyond merely the adequacy of pleading, and reached the merits of AIA-BIT’s jurisdictional allegations pursuant to the summary judgment standards. We decided that there were no circumstances under which AIA-BIT could show that the RSR funds were ERISA funds, or show that AA & C or John Hancock were ERISA fiduciaries. Id. at **g_**4_ Thus, the issues we decided in AIA-BIT were litigated, even though decided pursuant to a motion on the pleadings. Moreover, because AIA-BIT’s claim was dismissed pursuant to a motion brought by, inter alia, the Cal Council, in which it argued that “[t]he RSR funds are not and cannot be the asset of an employee benefit plan by virtue of the plaintiffs’ own pleading.” Thus CELSOC, by not only participating in, but actually initiating the motion that led to the district court and Ninth Circuit decisions, received “actual, full," }, { "docid": "10429541", "title": "", "text": "a federal question. On appeal, we affirmed, ruling “that the DPGIP was not an employee welfare benefit plan subject to ERISA jurisdiction,” AIA-BIT, 1988 WL 91140 at **3, and “that the defendants were not fiduciaries, for the purposes of ERISA jurisdiction under 29 U.S.C. § 1132(e)(1).” Id. at **4. The defendants were not ERISA fiduciaries because the RSR funds were not ERISA funds, but rather “a slightly more complex variation of a rather common practice where an insurance company set premiums and then set up reserve accounts that allow the smoothing out of fluctuations over the long run.” Id. (quoting district court opinion). Finally, we concluded that the plaintiffs did not satisfy the jurisdictional requirements for a prohibited transactions claim because the RSR funds were not ERISA assets and the defendants were not ERISA fiduciaries. Id. at **4. Here, the district court noted several factual disputes that were potentially relevant to the Trustees’ ERISA theory: the intent of the contracting parties as to the nature and use of RSR funds, the actual management of those funds, and the degree of Hancock’s discretionary control over the RSR both during the life of the DPGIP and after its dissolution. If this court’s independent determination of the matter were required, an evidentiary hearing ... might be warranted. The district court concluded, however, that the collateral estoppel effect of AIA-BIT required the action to be dismissed for lack of subject matter jurisdiction. While noting a lack of clarity in our AIA-BIT memorandum opinion, the district court concluded that we had determined in AIA-BIT “that the RSR was not a[n ERISA] fund asset.” See 1988 WL 91140 at **3. Because the CELSOC Trust was in privity with the Cal Council Trust, and because the district court concluded that AIA-BIT was a decision on the merits, the district court determined that the AIA-BIT decision had preclusive effect on the Trustees claim in this matter. The district court also concluded that the Supreme Court’s decision in John Hancock Mutual Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 114 S.Ct. 517, 126 L.Ed.2d 524" }, { "docid": "10429556", "title": "", "text": "Internal Revenue Service, 9 F.3d 1407 (9th Cir.1993), we indicated that the possible application of the limited exceptions to the doctrine of collateral estoppel requires three inquiries: “(1) whether the issues presented are in substance the same in the present and prior litigation; (2) whether controlling facts or legal principles have changed significantly since the prior judgment; and (3) whether ‘other special circumstances warrant an exception to the normal rules of preclusion.’-” Id. at 1410 (quoting Montana v. United States, 440 U.S. 147, 155, 99 S.Ct. 970, 975, 59 L.Ed.2d 210 (1979)). However, the Rich-ey court noted that “a fact, question or right distinctly adjudged in the original action cannot be disputed in a subsequent action, even though the determination was reached upon an erroneous view or by an erroneous application of the law.” Id. (quoting Montana, 440 U.S. at 162, 99 S.Ct. at 978 (quoting United States v. Moser, 266 U.S. 236, 242, 45 S.Ct. 66, 67, 69 L.Ed. 262 (1924))). See also Segal v. AT & T, 606 F.2d 842, 845 (9th Cir.1979) (noting exception to collateral es-toppel where “[t]he issue is one of law and ... a new determination is warranted in order to take account of a intervening change in the applicable legal context” and noting that “[i]ssue preclusion has never been applied to issues of law with the same rigor as to issues of fact”) (quoting current Restatement (Second) of Judgments, § 28(2) (1982)) (emphasis added). In AIA-BIT, we concluded that the organization of the RSR among the DPGIP participants was not an ERISA plan. 1988 WL 91140 at **3. Even assuming that an employee welfare benefit plan existed, we concluded that “the RSR was not a fund asset,” and that John Hancock and the other participants in the RSR agreement were not ERISA fiduciaries. Id. at **4. Whether a plan is an ERISA plan is a finding of fact. Moideen v. Gillespie, 55 F.3d 1478, 1481 (9th Cir.1995); Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266 (9th Cir.1991); Kanne v. Connecticut Gen. Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988), cert." }, { "docid": "10429554", "title": "", "text": "**4. However, the district court also correctly concluded that because the jurisdictional inquiries and the merits of the ERISA claim were intertwined in AIA-BIT, as they are here, our inquiry in AIA-BIT went beyond merely the adequacy of pleading, and reached the merits of AIA-BIT’s jurisdictional allegations pursuant to the summary judgment standards. We decided that there were no circumstances under which AIA-BIT could show that the RSR funds were ERISA funds, or show that AA & C or John Hancock were ERISA fiduciaries. Id. at **g_**4_ Thus, the issues we decided in AIA-BIT were litigated, even though decided pursuant to a motion on the pleadings. Moreover, because AIA-BIT’s claim was dismissed pursuant to a motion brought by, inter alia, the Cal Council, in which it argued that “[t]he RSR funds are not and cannot be the asset of an employee benefit plan by virtue of the plaintiffs’ own pleading.” Thus CELSOC, by not only participating in, but actually initiating the motion that led to the district court and Ninth Circuit decisions, received “actual, full, and fair litigation” of the issue of the RSR funds’ and John Hancock and AA & C’s status. The Trustees argue that the collateral estoppel effect of the AIA-BIT decision regarding RSR funds and AA & C’s John Hancock’s status as a fiduciary is nullified by the Supreme Court’s decision in Harris Trust. In Harris Trust, the Court held that funds deposited with an insurance company by a trust to secure retirement benefits, which were initially commingled with the general funds of the insurance company but could be converted into a guaranteed stream of benefits for retirees during the life of the contract, were ERISA plan assets, which required John Hancock’s treatment of those funds to meet fiduciary standards. 510 U.S. at 101-07,114 S.Ct. at 527-29. Even assuming this holding would compel a different result in AIA-BIT were that case decided today, the mere fact that the AIA-BIT case may have been erroneous when decided is not sufficient to preclude the collateral estop-pel effect of AIA-BIT in the present case. In Richey v. United States" }, { "docid": "10429543", "title": "", "text": "(1993) (hereinafter “Harris Trust”), did not undercut our factual determination in AIA-BIT that the RSR funds at issue were premiums, and not ERISA funds held by the insurer anticipating the future purchase of additional insurance policies. John Hancock’s motion to dismiss was granted. DISCUSSION The Trustees argue that the district court erred by determining that AIA-BIT collaterally estopped it from relitigating any of the factual issues essential to its claim, and alternatively that the Supreme Court’s decision in Harris Trust effectively overruled AIA-BIT ’s conclusions that the RSR funds were not ERISA funds. The Trustees also argue that jurisdiction of the district court can properly be premised solely on the CELSOC Health and Life Insurance Plan’s status as an ERISA plan, and that notwithstanding the RSR funds’ status as an asset of an ERISA plan, the Trustees, as fiduciaries of an ERISA plan, can bring a claim against the defendants, as “parties in interest,” under 29 U.S.C. § 1002(14), for engaging in prohibited transactions in violation of 29 U.S.C. § 1106. John Hancock argues that the Ninth Circuit’s conclusion regarding subject matter jurisdiction in AIA-BIT was binding on the district court, and that the Supreme Court’s holding in Harris Trust does not defeat AIA-BIT’s collateral estoppel effect. In the alternative, John Hancock argues that the CELSOC Health and Life Insurance Plan itself does not have standing to maintain an ERISA action, and that the Trustees do not have standing to bring an ERISA claim because they have failed to establish that they are fiduciaries of an ERISA plan. I. STANDARD OF REVIEW The district court’s granting of John Hancock’s motion to dismiss for lack of jurisdiction is appropriately reviewed under our standard for reviewing summary judgment motions. Usually, a district court is free to hear evidence regarding jurisdiction and to resolve factual disputes in determining whether it has jurisdiction over a claim. Carean Group v. United Farm Workers of Am., 940 F.2d 1291, 1293 (9th Cir.1991). “However, where jurisdiction is so intertwined with the merits that its resolution depends on the resolution of the merits, ‘the trial court should employ" }, { "docid": "3163030", "title": "", "text": "for a serious medical need. Rather, this language may, at most, suggest that cost can properly be considered in choosing between adequate options for treating a prisoner. . Kosilek argues that the defendant is collaterally estopped from challenging several facts that he asserts were litigated and determined in Kosilek I, specifically: (1) that gender identity disorder is a major mental illness; (2) that gender identity disorder is biological and innate and not a result of choice or upbringing; (3) that the Standards of Care describe the generally-accepted treatment for individuals with gender identity disorder; (4) that a real life experience as defined by the Standards of Care is possible in a prison setting; (5) that sex reassignment surgery is a possible, valid treatment for Kosilek despite her incarceration; and (6) that Kosilek’s risk of suicide is sincere and not manipulative. Defendant disagrees. The First Circuit has held that \"[t]he principle of collateral estoppel, or issue preclusion ... bars relitigation of any factual or legal issue that was actually decided in previous litigation between the parties, whether on the same or a different claim.” Keystone Shipping Co. v. New England Power Co., 109 F.3d 46, 51 (1st Cir.1997) (internal quotations and emphasis omitted). The Supreme Court has stated that \"[t]o determine the appropriate application of collateral estoppel ... necessitates three further inquiries: first, whether the issues presented by this litigation are in substance the same as those resolved against [defendant] in [the prior case]; second, whether controlling facts or legal principles have changed significantly since [the prior final judgment]; and finally, whether other special circumstances warrant an exception to the normal rules of preclusion.” Montana v. United States, 440 U.S. 147, 154-55, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). It was necessary for the court to hear evidence on the disputed issues to determine whether any of the controlling facts found in Kosilek I have changed significantly. In addition, the court must decide Kosilek’s condi tion at the time of trial, and the defendant’s knowledge and state of mind then too. Although some of the disputed six issues might merit being" }, { "docid": "747608", "title": "", "text": "268 (S.D.N.Y.1965); cf. Acha v. Beame, 570 F.2d 57, 64 n. 8 (2d Cir. 1978); all of the above-listed requirements would appear at least implicitly included in the two broader preconditions discussed in the text. To the extent any are not, I see no genuine dispute as to their presence in the record and consequently find them to be satisfied. There may also be a somewhat different formula suggested in the recent Supreme Court opinion in Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979), which discussed the standard a federal court should apply in resolving the collateral estoppel effect of Montana State court decisions on the United States Government, a non-party thereto. After reviewing the considerations underlying application of the doctrines of res judicata and collateral estoppel, at 153-155, 99 S.Ct. at 973-975 and concluding that, although a non-party, the United States “had a sufficient ‘laboring oar’ in the conduct of the state-court litigation to actuate principles of estoppel,” at 155, 99 S.Ct. at 975, the opinion of Justice Marshall continued: “To determine the appropriate application of collateral estoppel in the instant case necessitates three further inquiries: first, whether the issues presented by this litigation are in substance the same as those resolved against the United States in [the state-court decision]; second, whether controlling facts or legal principles have changed significantly since the state-court judgment; and finally, whether other special circumstances warrant an exception to the normal rules of preclusion.” The Court’s analysis at this point had, in effect, already resolved the “ ‘full and fair’ opportunity” test in the “laboring oar” conclusion, the corresponding requirement to which in the instant case is resolved infra. The first inquiry listed above, the “identity of the issues,” is also dealt with in the text, infra, and thus neither will be discussed in this footnote. However, regarding the second test in the above quote: “whether controlling facts or legal principles have changed significantly since the [prior decision],” I hereby hold no such change has occurred. See discussion in Montana, at 157-162, 99 S.Ct. at 976-978. Regarding the" } ]

[ { "docid": "22430130", "title": "", "text": "activity. Because federal liability under the FTCA is conditioned on analogous private liability, 28 U.S.C. § 2674, the Court ruled that there could be no federal liability for failure to fight a fire. This theory of governmental nonliability under the FTCA, an echo of the traditional distinction between governmental and proprietary functions applicable to municipal corporations, has since been rejected by the Court. See Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955); Rayonier Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957). . If we focus only on the Court’s holding in Dalehite that the failure to adopt stricter regulations or to regulate more closely loading and storage procedures is a protected discretionary function, Dalehite has in fact been followed by consistent and uneventful judicial development; the government is not liable for a discretionary decision, made consciously or by inadvertence, not to adopt stricter regulations. See, e, g., First National Bank v. United States, 552 F.2d 370 (10th Cir.) (failure to require more complete fungicide labels), cert, denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); Miller v. United States, 522 F.2d 386 (6th Cir. 1975) (air safety regulations); Blaber v. United States, 332 F.2d 629 (2d Cir. 1964) (safety regulation of independent contractors of AEC); Weinstein v. United States, 244 F.2d 68 (3d Cir. 1957) (IRS regulation of operations of alcohol denaturing plants); Dupree v. United States, 247 F.2d 819 (3d Cir. 1957) (promulgation of even unconstitutional or unreasonable regulations); Smith v. United States, 330 F.Supp. 867, 868-70 (E.D.Mich.1971) (policies and rules regulating training of the National Guard); Marr v. United States, 307 F.Supp. 930 (E.D.Okl.1968) (CAB air safety regulations); Rowe v. United States, 272 F.Supp. 462 (W.D.Pa.1964) (air safety regulations); Kullberg v. United. States, 271 F.Supp. 788 (W.D.Pa.1964) (air safety regulations). But cf. White v. Trans World Airlines, Inc., 320 F.Supp. 655, 657 (S.D.N.Y.1970) (dicta suggesting U.S. might be held liable if the FAA issued regulations “so inadequate to assure safe flight that supplementary services should have been provided.”) Weinstein v. United States," } ]

[ { "docid": "439223", "title": "", "text": "or duty.” 28 U.S.C. § 2680(a). But we need not wallow too long in the quagmire of what makes a governmental function discretionary or nondiscretionary, see generally Allnutt v. United States, 498 F.Supp. 832, 835-36 (W.D.Mo.1980); Blessing v. United States, 447 F.Supp. 1160, 1167-85 (E.D.Pa.1978), for we believe plaintiffs’ claim falls squarely within the bar of section 2680(a). Plaintiffs state their claim in terms of the Government’s publishing misleading information on the Wichita sectional chart. In essence, they argue the Government could have avoided ambiguity altogether by providing information on the chart to correlate the longest-runway symbol to the available-lighting symbol. But whatever ambiguity inheres in the chart’s symbols is traceable to the very terms of the specifications as developed by the IACC. See p. 438 supra. If there is a flaw in the chart, it is a flaw in the design of the IACC specifications themselves, for the chart’s symbols are the specifications incarnate. Plaintiffs do not controvert the Government’s contention that it has never undertaken “to indicate on its sectional aeronautical charts which runway at every airport has lights, how much of each runway is lit or the length of each runway. It would be virtually impossible to provide all data available for a particular airport with any clarity without causing a clutter situation on the sectional chart.” Rec., vol. I, at 27. For all that plaintiffs have asserted, they seek redress for the IACC’s decision to not require more detailed information on aeronautical charts such as the Wichita sectional chart. Their suit amounts to a challenge of the IACC’s decision on how much possible ambiguity it was willing to tolerate from lack of detail on sectional aeronautical charts, in favor of other policy goals such as chart clarity. The IACC could well have decided that its sectional charts would provide pilots certain minimum information, leaving to the pilot the responsibility of further inquiry for details from other sources available to him. In our view, this is precisely the kind of discretionary judgment that Congress in section 2680(a) meant to shield from suit: “determinations made by executives or" }, { "docid": "18731771", "title": "", "text": "All cultural features which extend 200 feet or more above surrounding terrain shall be considered as a “vertical obstruction.” 1 The obstruction symbol shall normally be shown for obstructions such as TV or radio towers 200' or more above the terrain. Where several obstructions occur within close proximity one to the other, or within a limited area, only the values of the highest shall be shown with the group obstruction symbol. Minor obstructions which are not in critical locations shall be omitted in congested areas. 2 Examples of features considered a hazard to low level flight are tanks, factories, lookout towers, smokestacks and elevated features such as cables or pipelines crossing rivers or valleys. These are extremely important because of the hazard to low level flight and the vertical dimension which facilitates identification at a distance. (b) Obstructions less than 200' in height should also be shown if the location is critical and chart congestion permits; for example, if location on the ground is much higher than the surrounding terrain or very near an airport. (R., Vol. Ill, p. 115 (emphasis added).) These specifications can be summarized as requiring obstructions to be depicted if they are 200 feet or more in height. Cartographers are encouraged, but not required, to show obstructions less than 200 feet in height if the location is critical and chart congestion permits. Plaintiffs contend that NOAA cartographers had a mandatory duty to depict the Buckskin Canyon cable on the Sectional Chart and their failure to do so constitutes actionable negligence not barred by the discretionary function exception. Plaintiffs urge us to adopt the reasoning of the district court in Allnutt v. United States, 498 F.Supp. 832 (W.D.Mo.1980), which considered the mandatory nature of depicting aerial obstructions on a Sectional Chart under facts almost identical to these. In Allnutt, plaintiffs brought suit against the United States for failing to chart or to depict a power line on a Sectional Chart. The relevant IACC specification the court considered required the following: “Power transmission lines, with pictorial pole (pylon) symbols, shall be shown on the chart to a density" }, { "docid": "18731772", "title": "", "text": "(R., Vol. Ill, p. 115 (emphasis added).) These specifications can be summarized as requiring obstructions to be depicted if they are 200 feet or more in height. Cartographers are encouraged, but not required, to show obstructions less than 200 feet in height if the location is critical and chart congestion permits. Plaintiffs contend that NOAA cartographers had a mandatory duty to depict the Buckskin Canyon cable on the Sectional Chart and their failure to do so constitutes actionable negligence not barred by the discretionary function exception. Plaintiffs urge us to adopt the reasoning of the district court in Allnutt v. United States, 498 F.Supp. 832 (W.D.Mo.1980), which considered the mandatory nature of depicting aerial obstructions on a Sectional Chart under facts almost identical to these. In Allnutt, plaintiffs brought suit against the United States for failing to chart or to depict a power line on a Sectional Chart. The relevant IACC specification the court considered required the following: “Power transmission lines, with pictorial pole (pylon) symbols, shall be shown on the chart to a density short of over-congestion____” Id. at 838-39. Upon review of this specification, the court ruled that “the discretionary function exception does not apply to the mechanical preparation of charts when such preparation fails to con form to specific IACC standards of specification.” Id. at 838 (emphasis in original). We believe the Allnutt case can be distinguished from this case. Unlike the specification in the case at bar which states that obstructions less than 200 feet should also be shown, the specification for power transmission lines in Allnutt states that power transmission lines shall be shown. We agree with the Allnutt court that under the facts of that case, “there [was] no discretionary behavior in following the established IACC rules for inclusion of power lines in sectional aeronautical charts.” Id. at 838. The power line was required to be shown unless the chart would be over congested. In the case at bar the IACC specifications for charting obstructions less than 200 feet in height permitted the NOAA cartographers’ to exercise their judgment in determining whether or not" }, { "docid": "2853504", "title": "", "text": "on the wrong side of the railroad tracks than it was actually located, Id.; and for providing false and dangerously misleading runway lighting information on a sectional chart, Murray v. United States, 327 F.Supp. 835, 841 (D.Utah 1971), aff’d. 463 F.2d 208 (10 Cir. 1972). In the present case the government can be held liable for preparing, publishing and disseminating the allegedly inaccurate and misleading San Francisco sectional chart. In making its rulings that the government can be liable for its alleged negligence in charting the route and in preparing the sectional chart, the Court finds that it is able to evaluate the alleged actions of the government by customary tort standards. Further, the Court finds that such evaluation will not impair the effective administration of the FAA and not subject it to an unreasonable number of lawsuits. Until now the Court has not discussed plaintiffs’ claim that the chart is also inaccurate and misleading because it fails to identify and explain the symbols used in the charting of the route. The use of charting symbols on sectional charts is extensively governed by IACC standards and specifications. Only if cartographers fail to follow these standards and specifications will the government be liable on an operational level because, if the inaccuracies and ambiguities are traceable to the standards and specifications (I.e., the flaw in the chart is a flaw in the specifications), there is no liability because what is contained in the standards and specifications is deemed to be a discretionary function. Baird v. United States, 653 F.2d 437, 440-41 (10th Cir. 1981), cert. denied, — U.S.-, 102 S.Ct. 1004, 71 L.Ed.2d 296 (1982) (inaccuracy of chart traced to the standards and specifications, so no liability); Allnut v. United States, 498 F.Supp. at 837 (inaccuracy of chart due to failure to follow the standards and specifications, so liability). Plaintiffs have so far failed to show the Court that the cartographers failed to follow the IACC standards and specifications in failing to identify and explain the symbols used in charting the route. Thus, the United States’ motion for summary judgment is granted" }, { "docid": "14958535", "title": "", "text": "particulars; and as to the preparation and publication of the chart says that such acts would constitute a “misrepresentation” and would fall under the exception of Section 2680(h). Further that the placing of false information on the chart was a discretionary function and came within the exception of § 2680(a). Likewise, that the location of the insulation of the Flight Service Station is within the latter exception. Without attempting a detailed analysis of the authorities dealing with the exceptions set out in § 2680(a) and (h) of the Tort Claims Act, the Court is of the opinion that under the applicable authorities, the acts here complained of do not fall within the scope of the sections referred to. United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614; Wenninger v. United States, 234 F.Supp. 499, (aff’d 3rd Cir.) 352 F.2d 523; United Air Lines v. Wiener (9th Cir.) 335 F.2d 379; Somerset Sea Food Co. v. United States (4th Cir.) 193 F.2d 631; Ingham v. Eastern Air Lines (2d Cir.) 373 F.2d 227; Eastern Air Lines v. Union Trust Company (Court of Appeals, D.C.) 221 F.2d 62, affirmed 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796, on authority of Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48; American Exchange Bank of Madison, Wis. v. United States (7th Cir.) 257 F.2d 938; Jemison v. The Duplex (So.Dist. of Ala.) 163 F.Supp. 947. The chart for the Tuscaloosa airport shows the unadorned symbol “L”. The legend on the chart explains this to mean “lighing available sunset to sunrise.” The legend further shows that if the “L” is preceded by an asterisk (*L), the symbol means “lighting available sunset to sunrise on prior request”. The legend does not tell the pilot that an airport showing a symbol “L” may not be lighted when he arrives during the night time. The explanation of the symbol “*L” by stating that one must request lighting at an airport so marked, suggests that no request of any kind is necessary where the unadorned “L” is the" }, { "docid": "2853503", "title": "", "text": "true examples of day-to-day, operational level activities. Thus, the omission of the northerly route from the chart, the misleading placement of the altitude figure on the chart, and the misplacement of the blue diamonds on the chart, are all operational activities and the government can be liable for the alleged negligence. Numerous cases hold that in connection with aeronautical charts prepared, published and disseminated by the government, the government has a duty to truly and accurately represent those features it at tempts to portray, and that discharge of this duty does not fall within the discretionary function exception. Reminga v. United States, 448 F.Supp. 445, 460 (W.D.Mich. 1978), aff’d, 631 F.2d 449, 458-59 (6th Cir. 1980). Accordingly, the government is liable for negligence in the preparation, publication and circulation of an erroneous or misleading sectional chart. Allnutt v. United States, 498 F.Supp. 832, 837 (W.D.Mo. 1980); Sullivan v. United States, 299 F.Supp. 621, 625-26 (N.D.Ala.1968), aff’d. 411 F.2d 794 (11 Cir. 1969). Thus, the government has been held liable for charting a television broadcasting tower on the wrong side of the railroad tracks than it was actually located, Id.; and for providing false and dangerously misleading runway lighting information on a sectional chart, Murray v. United States, 327 F.Supp. 835, 841 (D.Utah 1971), aff’d. 463 F.2d 208 (10 Cir. 1972). In the present case the government can be held liable for preparing, publishing and disseminating the allegedly inaccurate and misleading San Francisco sectional chart. In making its rulings that the government can be liable for its alleged negligence in charting the route and in preparing the sectional chart, the Court finds that it is able to evaluate the alleged actions of the government by customary tort standards. Further, the Court finds that such evaluation will not impair the effective administration of the FAA and not subject it to an unreasonable number of lawsuits. Until now the Court has not discussed plaintiffs’ claim that the chart is also inaccurate and misleading because it fails to identify and explain the symbols used in the charting of the route. The use of charting" }, { "docid": "2853505", "title": "", "text": "symbols on sectional charts is extensively governed by IACC standards and specifications. Only if cartographers fail to follow these standards and specifications will the government be liable on an operational level because, if the inaccuracies and ambiguities are traceable to the standards and specifications (I.e., the flaw in the chart is a flaw in the specifications), there is no liability because what is contained in the standards and specifications is deemed to be a discretionary function. Baird v. United States, 653 F.2d 437, 440-41 (10th Cir. 1981), cert. denied, — U.S.-, 102 S.Ct. 1004, 71 L.Ed.2d 296 (1982) (inaccuracy of chart traced to the standards and specifications, so no liability); Allnut v. United States, 498 F.Supp. at 837 (inaccuracy of chart due to failure to follow the standards and specifications, so liability). Plaintiffs have so far failed to show the Court that the cartographers failed to follow the IACC standards and specifications in failing to identify and explain the symbols used in charting the route. Thus, the United States’ motion for summary judgment is granted in this limited respect, though if plaintiffs can assemble facts to show that the standards and specifications were not complied with, plaintiffs may move for reconsideration of this portion of the Court's ruling on the motion. In conclusion, the Court finds that the choice of where to chart the mountain pass route over the Kearsarge Pass, and the allegedly inaccurate and misleading sectional chart, are not within the discretionary function exception, and so can be a basis for the imposition of liability against the United States. The United States’ motion for summary judgment is denied to this extent. (5) Failure to review the chart. If, as alleged by plaintiffs, there was a duty incumbent upon officials of the FAA to review a sectional chart before it is published and disseminated to be sure that what was to be depicted was accurate, then the discharge of such duty was an operational function as within the normal day-today duties of the officials. Thus, the alleged negligent failure to perform this duty can be the basis for the" }, { "docid": "439235", "title": "", "text": "Cartographic Committee, under the direction of the Federal Aviation Agency, the Department of Defense, and the Department of Commerce, prepared charts and updated the same providing flight information materials. The charge here is that the United States through the IACC published incorrect and misleading information regarding the Paul Windle Airport, and at the same time failed to warn appellant of this; that this incorrect information was the proximate cause of the accident involved in this case and of the appellant’s damages. Specifically, appellant maintains that the chart failed to inform him that the longest runway at that airport was not the lighted runway, and the shortest runway was not lighted in its entirety. Nevertheless, the trial court dismissed the case without any trial and so ruled on the conclusion that there was a lack of subject matter jurisdiction (which has been mentioned). So, basically the question here is whether the trial court erred in finding that the defendant’s failure to warn the plaintiff of the true condition constituted a decision protected by the discretionary function doctrine. The asserted defense arises under 28 U.S.C. § 2680 which sets a number of exceptions to the Federal Tort Claims Act. It provides: “the provisions of this chapter * * * do not apply to— (a) Any claim * * * based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the government, whether or not the discretion involved be abused.” The trial court’s holding is predicated upon the Supreme Court’s decision in Dalehite v. United States, 346 U.S. 15, 35-6, 73 S.Ct. 956, 967-968, 97 L.Ed. 1427 (1953). That decision did construe the discretionary function provision and held that it included “determinations made by executives or administrators establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion.” The trial court held that the IACC specifications do not require that the government should provide information regarding lighting on runways other than the times of operation and" }, { "docid": "439224", "title": "", "text": "runway at every airport has lights, how much of each runway is lit or the length of each runway. It would be virtually impossible to provide all data available for a particular airport with any clarity without causing a clutter situation on the sectional chart.” Rec., vol. I, at 27. For all that plaintiffs have asserted, they seek redress for the IACC’s decision to not require more detailed information on aeronautical charts such as the Wichita sectional chart. Their suit amounts to a challenge of the IACC’s decision on how much possible ambiguity it was willing to tolerate from lack of detail on sectional aeronautical charts, in favor of other policy goals such as chart clarity. The IACC could well have decided that its sectional charts would provide pilots certain minimum information, leaving to the pilot the responsibility of further inquiry for details from other sources available to him. In our view, this is precisely the kind of discretionary judgment that Congress in section 2680(a) meant to shield from suit: “determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion.” Dalehite v. United States, 346 U.S. 15, 35-36, 73 S.Ct. 956, 967-968, 97 L.Ed. 1427 (1953). The principle upon which section 2680(a) rests appeared early and succinctly in our jurisprudence, when Chief Justice John Marshall said: “It is scarcely necessary for the court to disclaim all pretensions to such jurisdiction [to review the executive’s discretionary functions]. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court is . . . not to inquire how the executive, or executive officers, perform duties in which they have a discretion.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803). Unlike cases relied upon by plaintiffs to support their claim, we do not have here a situation where negligence has attended the mechanical preparation, as distinguished from the substance of the design, of an aeronautical chart. See, e. g., Reminga v. United States, 631 F.2d" }, { "docid": "1520733", "title": "", "text": "theory is that there was operational negligence within the ACD by cartographers who failed to include the Three Rivers power line over the Osage River in violation of the IACC specifications. Defendant cites the recent case of Baird v. United States, No. 78-4180 (D.Kan. filed Jan. 3, 1979), in support of its contention that the discretionary function exception applies. But, Baird differs from the instant action in the important respect that the IACC standards did not require the type of information that the plaintiffs alleged was necessary for air safety. “[Plaintiff] . . . contends the United States should be held liable because the chart failed to inform him (1) that the longest runway at the Paul Windle Airport was not the lighted runway and (2) that the shorter runway had lighting on only 2,176 of its 2,580 feet . . . The Court finds that the IACC specifications do not require or even suggest the Government should provide this information. No mention is made of a requirement that the longest runway shown be the lighted runway or that symbols be adopted and used to show a limitation on lighting other than the times of operation and general availability.” Baird v. United States, slip op. at p. 6. Thus, the thrust of plaintiffs’ complaint in Baird was that the government through the IACC had failed to develop sufficiently comprehensive policies for inclusion of visual flight information. And the Court concluded that “[i]t would appear suit against the United States cannot be maintained on the claim that it failed to enact a more comprehensive set of air safety regulations.” Id. Here, plaintiffs are not challenging the sufficiency of the IACC specifications. Rather, plaintiffs contend that the personnel within the ACD failed to properly adhere to the established IACC specifications in the preparation of Chart 13. As such, this Court finds that the discretionary function exception does not apply to the mechanical preparation of aeronautical charts when such preparation fails to conform to specific IACC standards or specifications. At such a basic level, there is no discretionary behavior in following the established" }, { "docid": "439217", "title": "", "text": "SEYMOUR, Circuit Judge. This is a consolidated appeal after dismissal of a Federal Tort Claims suit under 28 U.S.C. §§ 1346(b), 2671-2680, against the United States for damages that resulted when a small aircraft crashed off the runway at the Paul Windle Airport in Kansas. The claimants are pilot Galen Baird, his employer Capitol Air Service, Inc., and its insurer Vanguard Insurance Co. (collectively “plaintiffs”). They claim that the Government published a misleading aeronautical chart that caused Baird to overestimate the length of a lighted runway on the evening of the crash. The district court dismissed for lack of subject matter jurisdiction after concluding that the chart’s issuance fell within the discretionary-function exception of 28 U.S.C. § 2680(a) , and that sovereign immunity therefore barred the claim. We affirm. The parties do not dispute the material facts. At approximately 9:30 p. m. on July 27,1976, Baird and three passengers flew in Kansas from Ulysses to Greenburg. The group traveled in a Piper Seneca, a small aircraft. In making his landing approach at Greenburg’s Paul Windle Airport, Baird used the Wichita Sectional Aeronautical Chart (16th ed., June 17, 1976). The symbols PAUL WINDLE 2230-L-28 appeared on the chart. According to the chart’s legend, “PAUL WINDLE” symbolized the name of the airport. The “2230” indicated “Elevation in feet [above sea-level].” The “28” described the “Length of longest runway in hundreds of feet.” Finally, the symbol “L” was to be interpreted according to the following legend: “L — Lighting in operation Sunset to Sunrise *L — Lighting available Sunset to Sunrise only on request (by radio call, letter, phone, telegram). (L) — Lighting in operation part of the night and on request, or not operating thereafter. When facility or information is lacking, the respective character is replaced by a dash.” Rec., supp. vol. II. From the sectional chart, then, Baird could infer that runway lights would be on at Paul Windle Airport from sunset to sunrise. And in fact, they were. But Baird inferred, in addition, that the runway lights he saw from the air marked off Paul Windle’s longest runway whose length" }, { "docid": "439228", "title": "", "text": "sectional. In the dissent’s view, the lack of detail here amounts to an actionable breach of duty by the Government to warn of dangers. We do not believe, however, that the breach of duty in the course of the operational activities found actionable in those cases can be properly likened to the IACC’s discretionary design choices challenged here. It is important to note that plaintiff’s challenge goes only to the Wichita chart. And no defect is claimed in that chart apart from the IACC specifications to which it conforms. In actuality, the challenge applies to the design of all sectional charts. Viewed in its essence, plaintiffs’ claim is that the Wichita chart and all others like it should provide more detailed and hence more accurate information. Simply put, plaintiffs challenge the Wichita sectional chart because it was too sketchy. This challenge thus goes to the heart of the IACC’s deliberative and judgmental activities in designing and approving the extent of detail to be included in aeronautical sectional charts versus the extent of detail left to be gleaned from other sources that the prudent pilot can be expected to consult. Such design and approval activities or choices by the Government fall within the discretionary-function exception and are not actionable under the Federal Tort Claims Act. See, e. g., Reminga v. United States, 631 F.2d 449, 454-56 (6th Cir. 1980) (activity in designing FAA regulations that do not require lighting or other warning markers on tower guy wires); Wright v. United States, 568 F.2d 153, 154 (10th Cir. 1977) (activity of Interior Department in designing approach roads to bridge), cert. denied, 439 U.S. 824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978); First National Bank v. United States, 552 F.2d 370, 376 (10th Cir. 1977) (activity of Agriculture Department in devising warning labels for pesticides and investigating dangers connected with prior use of such pesticides); Miller v. United States, 522 F.2d 386, 387 (6th Cir. 1975) (failure to adopt more strict air safety regulations); Spillway Marina, Inc. v. United States, 445 F.2d 876, 878 (10th Cir. 1971) (policy decision to lower reservoir’s water" }, { "docid": "439222", "title": "", "text": "exception of 28 U.S.C. § 2680(a) does not apply to the Government’s “accumulation, standardization, publication and distribution of inaccurate and misleading symbolic information” in the Wichita sectional chart. Appellants’ Brief at 1-2. We are compelled to disagree. Section 2680(a), like every other exception in 28 U.S.C. § 2680, limits the Government’s waiver of sovereign immunity. It therefore poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction. See First National Bank v. United States, 552 F.2d 370, 374 (10th Cir.), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); Smith v. United States, 546 F.2d 872, 875-76 (10th Cir. 1976); cf. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (time limitation on sovereign’s consent to suit; 28 U.S.C. § 2401(b)); Knapp v. United States, 636 F.2d 279 (10th Cir. 1980) (same; 28 U.S.C. § 2409a(f)). Thus, to test the district court’s jurisdictional dismissal, we must determine whether plaintiffs have challenged a “discretionary function or duty.” 28 U.S.C. § 2680(a). But we need not wallow too long in the quagmire of what makes a governmental function discretionary or nondiscretionary, see generally Allnutt v. United States, 498 F.Supp. 832, 835-36 (W.D.Mo.1980); Blessing v. United States, 447 F.Supp. 1160, 1167-85 (E.D.Pa.1978), for we believe plaintiffs’ claim falls squarely within the bar of section 2680(a). Plaintiffs state their claim in terms of the Government’s publishing misleading information on the Wichita sectional chart. In essence, they argue the Government could have avoided ambiguity altogether by providing information on the chart to correlate the longest-runway symbol to the available-lighting symbol. But whatever ambiguity inheres in the chart’s symbols is traceable to the very terms of the specifications as developed by the IACC. See p. 438 supra. If there is a flaw in the chart, it is a flaw in the design of the IACC specifications themselves, for the chart’s symbols are the specifications incarnate. Plaintiffs do not controvert the Government’s contention that it has never undertaken “to indicate on its sectional aeronautical charts which" }, { "docid": "18731768", "title": "", "text": "Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). The Government’s liability under section 1346(b) is limited, however, by section 2680 which enumerates exceptions to the waiver of sovereign immunity under the FTCA. For instance, the doctrine of sovereign immunity continues to bar suits against the Government for certain discretionary acts of its employees. Specifically, under section 2680(a) the Government is immune from claims brought under 1346(b) “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the federal agency or an employee of the Government, whether or not the discretion involved be abused. ” 28 U.S.C. § 2680(a) (emphasis added). In support of its motion for summary judgment, the United States argued that NOAA employees exercised a discretionary function under section 2680(a) in excluding the Buckskin Canyon cable from the Sectional Chart. Plaintiffs contend that the district court misapplied the discretionary function exception in granting the Government’s motion for summary judgment. We agree with the district court that the discretionary function exception applies to this claim. In considering this issue we must first decide whether or not the decision by NOAA cartographers to exclude the Buckskin Canyon cable from the Sectional Chart involved the exercise of discretion. If so, we must then decide whether or not the cartographers’ exercise of discretion comes within the discretionary function exception of 28 U.S.C. § 2680(a). In preparing Sectional Charts, NOAA cartographers are required to follow specifications developed and promulgated by the Inter-Agency Air Cartographic Committee (IACC), a Committee of the United States Government. “These specifications shall be complied with without deviation until such time as they are amended by formal IACC action.” (R., Vol. Ill, p. i). The parties agree that the relevant IACC specifications are, in part, as follow: Chapter III 1. COMPILATION b. Detail Selection and Density (1) Rigid rules to satisfy" }, { "docid": "1520734", "title": "", "text": "lighted runway or that symbols be adopted and used to show a limitation on lighting other than the times of operation and general availability.” Baird v. United States, slip op. at p. 6. Thus, the thrust of plaintiffs’ complaint in Baird was that the government through the IACC had failed to develop sufficiently comprehensive policies for inclusion of visual flight information. And the Court concluded that “[i]t would appear suit against the United States cannot be maintained on the claim that it failed to enact a more comprehensive set of air safety regulations.” Id. Here, plaintiffs are not challenging the sufficiency of the IACC specifications. Rather, plaintiffs contend that the personnel within the ACD failed to properly adhere to the established IACC specifications in the preparation of Chart 13. As such, this Court finds that the discretionary function exception does not apply to the mechanical preparation of aeronautical charts when such preparation fails to conform to specific IACC standards or specifications. At such a basic level, there is no discretionary behavior in following the established IACC rules for inclusion of power lines on sectional aeronautical charts. See generally, Reminga v. United States, supra; In re Air Crash Disaster Near Silver Plume, Colo., 445 F.Supp. 384, 402-404 (D.Kan. 1977). III. NEGLIGENCE Jurisdiction having been established, this Court must now determine whether there was any operational level negligence in the preparation of Chart 13. This Court initially observes that “[t]he United States has a duty, when publishing and disseminating aeronautical charts, to accurately represent those features it attempts to portray. Where such information is inaccurately and negligently indicated, and such negligence is a proximate cause of plaintiff’s injuries, the government is liable for such damages as are caused.” Reminga v. United States, supra, 448 F.Supp. at 460 (citing Murray v. United States, 327 F.Supp. 385 (D.Utah 1971); and Sullivan v. United States, 299 F.Supp. 621 (N.D.Ala.1968) aff’d. 411 F.2d 794 (5th Cir. 1969)). Plaintiffs argue that the applicable IACC specifications required inclusion of the Three Rivers powerline on Chart 13. In abbreviated fashion, the standards germane to this action read as follows:" }, { "docid": "439218", "title": "", "text": "Airport, Baird used the Wichita Sectional Aeronautical Chart (16th ed., June 17, 1976). The symbols PAUL WINDLE 2230-L-28 appeared on the chart. According to the chart’s legend, “PAUL WINDLE” symbolized the name of the airport. The “2230” indicated “Elevation in feet [above sea-level].” The “28” described the “Length of longest runway in hundreds of feet.” Finally, the symbol “L” was to be interpreted according to the following legend: “L — Lighting in operation Sunset to Sunrise *L — Lighting available Sunset to Sunrise only on request (by radio call, letter, phone, telegram). (L) — Lighting in operation part of the night and on request, or not operating thereafter. When facility or information is lacking, the respective character is replaced by a dash.” Rec., supp. vol. II. From the sectional chart, then, Baird could infer that runway lights would be on at Paul Windle Airport from sunset to sunrise. And in fact, they were. But Baird inferred, in addition, that the runway lights he saw from the air marked off Paul Windle’s longest runway whose length in hundreds of feet was reflected in the “28” symbol. Unfortunately, the lighted runway was not Paul Windle’s longest. It was a shorter one only 2,580 feet long. Moreover, that runway was lighted for only 2,176 of its 2,580 feet. The aircraft overran the runway and crashed. Two passengers were killed, the third and Baird severely injured. The Wichita sectional chart expressly states that it was “published in accordance with Inter-Agency Air Cartographic Committee specifications.” Rec., supp. vol. II. This Committee, commonly known as the IACC, was created by agreement of the Department of Defense, the Federal Aviation Administration, and the Commerce Department. These three federal agencies intended the IACC to “develop the final detailed and authoritative specifications for the actual flight information materials (both textual and chart forms) which will constitute the official operative materials produced or used by Government agencies,” Rec., vol. IV, at 1, subject to the agencies’ review and approval. Rec., vol. IV, at 5. Once approved, the specifications would become binding. See id. In exercise of its authority, the IACC" }, { "docid": "439225", "title": "", "text": "administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion.” Dalehite v. United States, 346 U.S. 15, 35-36, 73 S.Ct. 956, 967-968, 97 L.Ed. 1427 (1953). The principle upon which section 2680(a) rests appeared early and succinctly in our jurisprudence, when Chief Justice John Marshall said: “It is scarcely necessary for the court to disclaim all pretensions to such jurisdiction [to review the executive’s discretionary functions]. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court is . . . not to inquire how the executive, or executive officers, perform duties in which they have a discretion.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803). Unlike cases relied upon by plaintiffs to support their claim, we do not have here a situation where negligence has attended the mechanical preparation, as distinguished from the substance of the design, of an aeronautical chart. See, e. g., Reminga v. United States, 631 F.2d 449, 451-52 (6th Cir. 1980) (TV tower’s ground location depicted inaccurately on chart); Allnutt v. United States, 498 F.Supp. 832, 835 (W.D. Mo.1980) (failure of chart to depict existing power transmission line). Neither is this a situation where use of the wrong lighting symbol caused the chart to expressly contradict conditions on the ground. See, e. g., Murray v. United States, 327 F.Supp. 835, 839, 841 (D.Utah 1971) (chart symbols and other information indicated lighting available throughout night or in any event upon aircraft’s circling field; pilot unable to get lights on even after circling field), aff’d, 463 F.2d 208 (10th Cir. 1972); Sullivan v. United States, 299 F.Supp. 621, 625 (N.D.Ala. 1968) (use of “L” symbol where “*L” called for lead pilot to expect lights on from sunset to sunrise, but when pilot arrived during night flight, he found lights off), aff’d, 411. F.2d 794 (5th Cir. 1969). Finally, we do not have a situation where negligence is confined essentially to the operation of a government facility or enterprise. See, e. g., Indian Towing" }, { "docid": "439221", "title": "", "text": "night landing capability shall be indicated by a short dash in lieu of the letter ‘L.’ “(f) The runway length shall be positioned below the airport name following lighting. Runway length shall be the actual length of the longest active runway (pavement, end to end), including displaced thresholds, but excluding those areas designated as overruns. Runway length shall be shown to the nearest 100 feet using 70 as the division point; e. g., 59 shall be used to indicate a runway of 5,870.” Rec., vol. V, at 94-95. The “PAUL WINDLE/2230-L-28” symbols on the Wichita sectional chart are in literal compliance with the quoted specifications. Lights were on sunset to sunrise and the longest runway was 2,800 feet. Nevertheless, plaintiffs contend that the Government should be liable for the chart’s failure to tell pilot Baird that the longest runway to which the “28” symbol referred was not the runway to which the lighting symbol “L” referred, and that the shorter runway was lit for only 2,176 of its 2,580 feet. They argue that the discretionary-function exception of 28 U.S.C. § 2680(a) does not apply to the Government’s “accumulation, standardization, publication and distribution of inaccurate and misleading symbolic information” in the Wichita sectional chart. Appellants’ Brief at 1-2. We are compelled to disagree. Section 2680(a), like every other exception in 28 U.S.C. § 2680, limits the Government’s waiver of sovereign immunity. It therefore poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction. See First National Bank v. United States, 552 F.2d 370, 374 (10th Cir.), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); Smith v. United States, 546 F.2d 872, 875-76 (10th Cir. 1976); cf. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (time limitation on sovereign’s consent to suit; 28 U.S.C. § 2401(b)); Knapp v. United States, 636 F.2d 279 (10th Cir. 1980) (same; 28 U.S.C. § 2409a(f)). Thus, to test the district court’s jurisdictional dismissal, we must determine whether plaintiffs have challenged a “discretionary function" }, { "docid": "439227", "title": "", "text": "Co. v. United States, 350 U.S. 61, 62, 76 S.Ct. 122, 123, 100 L.Ed. 48 (1955) (negligent repair and maintenance of government lighthouse); Smith v. United States, 546 F.2d 872, 874-75 (10th Cir. 1976) (negligent failure to post signs to warn of superheated thermal pools in Yellowstone National Park); Yates v. United States, 497 F.2d 878, 882 (10th Cir. 1974) (FAA air controller’s negligent failure, while directing air traffic, to provide adequate separation between aircraft); United Air Lines, Inc. v. Wiener, 335 F.2d 379, 392-98 (9th Cir.) (negligent operation and use of Air Force pilot training procedures that disregarded Air Force regulations), cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964). The negligence in all these cases did not relate to discretionary or judgmental activities by the Government, so section 2680(a) did not apply. From the last four cases cited above, the dissent concludes that the discretionary-function exception does not cover the IACC’s decision in this case on how detailed to make the runway lighting information in charts such as the Wichita sectional. In the dissent’s view, the lack of detail here amounts to an actionable breach of duty by the Government to warn of dangers. We do not believe, however, that the breach of duty in the course of the operational activities found actionable in those cases can be properly likened to the IACC’s discretionary design choices challenged here. It is important to note that plaintiff’s challenge goes only to the Wichita chart. And no defect is claimed in that chart apart from the IACC specifications to which it conforms. In actuality, the challenge applies to the design of all sectional charts. Viewed in its essence, plaintiffs’ claim is that the Wichita chart and all others like it should provide more detailed and hence more accurate information. Simply put, plaintiffs challenge the Wichita sectional chart because it was too sketchy. This challenge thus goes to the heart of the IACC’s deliberative and judgmental activities in designing and approving the extent of detail to be included in aeronautical sectional charts versus the extent of detail left to" }, { "docid": "439226", "title": "", "text": "449, 451-52 (6th Cir. 1980) (TV tower’s ground location depicted inaccurately on chart); Allnutt v. United States, 498 F.Supp. 832, 835 (W.D. Mo.1980) (failure of chart to depict existing power transmission line). Neither is this a situation where use of the wrong lighting symbol caused the chart to expressly contradict conditions on the ground. See, e. g., Murray v. United States, 327 F.Supp. 835, 839, 841 (D.Utah 1971) (chart symbols and other information indicated lighting available throughout night or in any event upon aircraft’s circling field; pilot unable to get lights on even after circling field), aff’d, 463 F.2d 208 (10th Cir. 1972); Sullivan v. United States, 299 F.Supp. 621, 625 (N.D.Ala. 1968) (use of “L” symbol where “*L” called for lead pilot to expect lights on from sunset to sunrise, but when pilot arrived during night flight, he found lights off), aff’d, 411. F.2d 794 (5th Cir. 1969). Finally, we do not have a situation where negligence is confined essentially to the operation of a government facility or enterprise. See, e. g., Indian Towing Co. v. United States, 350 U.S. 61, 62, 76 S.Ct. 122, 123, 100 L.Ed. 48 (1955) (negligent repair and maintenance of government lighthouse); Smith v. United States, 546 F.2d 872, 874-75 (10th Cir. 1976) (negligent failure to post signs to warn of superheated thermal pools in Yellowstone National Park); Yates v. United States, 497 F.2d 878, 882 (10th Cir. 1974) (FAA air controller’s negligent failure, while directing air traffic, to provide adequate separation between aircraft); United Air Lines, Inc. v. Wiener, 335 F.2d 379, 392-98 (9th Cir.) (negligent operation and use of Air Force pilot training procedures that disregarded Air Force regulations), cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964). The negligence in all these cases did not relate to discretionary or judgmental activities by the Government, so section 2680(a) did not apply. From the last four cases cited above, the dissent concludes that the discretionary-function exception does not cover the IACC’s decision in this case on how detailed to make the runway lighting information in charts such as the Wichita" } ]